2417122 (Refugee)

[2024] AATA 4393

2417122 (Refugee) [2024] AATA 4393 (11 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2417122

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Wayne Pennell

DATE:11 September 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 11 September 2024 at 10:37am

CATCHWORDS

REFUGEE – protection visa – Tonga – family land dispute – protests – physical assault – multiple return visits to Tonga – delay in applying for protection – state protection – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 420, 499
Migration Regulations 1994, Schedule 2

CASES

ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Respondents S152-2003 [2004] HCA 18
Mohammed v Minister for Immigration & Anor [2017] FCCA 2356
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 Protection visas to the applicants under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 8 February 2024.

2. The applicants, who are citizens of Tonga, applied for Protection visas.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to Tonga, there was a real risk they would suffer significant harm, and their application was refused on the basis that they were not refugees as defined by the Act[3] and therefore they were not persons 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).

3. The applicants filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] They were not represented throughout the review process.

   [5]The Tribunal received the applicant’s review application on 3 March 2024.

4. On 8 August 2024, the Tribunal dispatched to the applicants’ email 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 applicants to attend a hearing in regard to their review application. That hearing was scheduled for 5 September 2024. On the day prior to the scheduled hearing, they advised the Tribunal that they would not be attending the hearing and asked that the Tribunal make a decision on the papers. It was also requested that the Tribunal make a referral for Ministerial Intervention.

   CRITERIA FOR A PROTECTION VISA

5. 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).

6. 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).

7. 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).

8. 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.

9. 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).

10. 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).

11. 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 APPLICANTS’ IDENTITY

12. The applicants claim to be citizens of Tonga and provided copies of their passports to the Department to authenticate this claim. The Tribunal accepts their identities and based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Tonga is their country of nationality and their 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).

13. Based on the evidence, the Tribunal is satisfied the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

14. 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

15. The applicant’s migration records held within the Department’s file shows that between 2012 and 2023, the primary applicant and the second applicant made a number of trips between Tonga and Australia. More recently, the third applicant made a small number of trips, and the fourth applicant was born onshore and has never departed Australia. The details of those visas granted to the applicants and the trips made are:

3 July 2012	Second applicant granted a Special Program (subclass 416) visa, valid until 9 February 2013.
[July] 2012	Second applicant arrived in Australia for the first time.
8 February 2013	Primary applicant granted a Special Program (subclass 416) visa, valid until 15 September 2013.
[February] 2013	Second applicant departed Australia and returned to Tonga.
[February] 2013	Primary applicant arrived in Australia for the first time.
8 August 2013	Second applicant granted a Special Program (subclass 416) visa, valid until 12 March 2014.
[August] 2013	Primary applicant departed Australia and returned to Tonga.
[August] 2013	Second applicant arrived in Australia for the second time.
29 January 2014	Primary applicant granted a Special Program (subclass 416) visa, valid until 22 August 2014.
[February] 2014	Primary applicant arrived in Australia for the second time.
[March] 2014	Second applicant departed Australia and returned to Tonga.
[August] 2014	Primary applicant departed Australia and returned to Tonga.
11 September 2014	Second applicant granted a Special Program (subclass 416) visa, valid until 25 March 2015.
[September] 2014	Second applicant arrived in Australia for the third time.
28 January 2015	Primary applicant granted a Special Program (subclass 416) visa, valid until 23 August 2015.
[February] 2015	Primary applicant arrived in Australia for the third time.
[March] 2015	Second applicant departed Australia and returned to Tonga.
[August] 2015	Primary applicant departed Australia and returned to Tonga.
2 October 2015	Second applicant granted a Special Program (subclass 416) visa, valid until 20 April 2016.
[October] 2015	Second applicant arrived in Australia for the fourth time.
5 February 2016	Primary applicant granted a Special Program (subclass 416) visa, valid until 26 August 2016.
[February] 2016	Primary applicant arrived in Australia for the fourth time.
[April] 2016	Second applicant departed Australia and returned to Tonga.
[August] 2016	Primary applicant departed Australia and returned to Tonga.
6 October 2016	Second applicant granted a Special Program (subclass 416) visa, valid until 25 April 2017.
[October] 2016	Second applicant arrived in Australia for the fifth time.
11 January 2017	Primary applicant granted a Visitor (subclass 600) visa, valid until 11 December 2018.
[February] 2017	Primary applicant arrived in Australia for the fifth time.
[April] 2017	Both primary and second applicants departed Australia and returned to Tonga.
22 May 2017	Second applicant granted a Visitor (subclass 600) visa, valid until 16 July 2019.
[August] 2017	Both primary and second applicants arrived in Australia. It was the sixth trip to Australia for both applicants.
[October] 2017	Second applicant departed Australia and returned to Tonga.
[October] 2017	Second applicant arrived in Australia for the seventh time.
[November] 2017	Both primary and second applicants departed Australia and returned to Tonga.
[Date]	Third applicant was born in Tonga.
[April] 2018	Primary applicant arrived in Australia for the seventh time.
[July] 2018	Primary applicant departed Australia and returned to Tonga.
[September] 2018	Primary applicant arrived in Australia for the eighth time.
2 December 2018	Primary applicant granted a Bridging (subclass 010) visa, valid until 2 February 2019.
2 February 2019	Primary applicant granted a Student (subclass 500) visa, valid until 10 November 2023.
13 April 2019	Third applicant granted a Visitor (subclass 600) visa, valid until 16 July 2019.
[April] 2019	Second and third applicants arrived together in Australia. It was the second applicant's eighth trip to Australia and the third applicant's first trip.
[May] 2019	Second and third applicants departed Australia and returned to Tonga.
[June] 2019	Second and third applicants arrived together in Australia. It was the second applicant's ninth trip to Australia and the third applicant's second trip.
14 July 2019	Second and third applicants granted Bridging (subclass 010) visas, valid until 17 October 2019.
17 October 2019	Second applicant granted a Student (subclass 500) visa, and third applicant was a dependent to that visa, which was valid until 13 October 2023.
[Date]	Fourth applicant was born in Australia. Since then, this applicant has remained onshore and has been a dependent to the Visa granted to her parents.
[January] 2023	Primary applicant departed Australia and returned to Tonga.
[January] 2023	Primary applicant arrived in Australia for the ninth time.
11 October 2023	Protection visa application lodged.

1. That chronology shows that between 2012 and 2023, both the primary and second applicants made a significant number of trips to Australia. The last substantial visas granted to each of those applicants before their last trip to Australia in 2019 was a Student visa. Their second child (fourth applicant) was born onshore within the duration of the validity of their Student visas.

2. The most recent time that any of the applicant’s return to Tonga was [in] January 2023 when the primary applicant departed Australia and returned to Tonga. A week later, he arrived back in Australia and has remained onshore with the other applicants since that time. Almost nine months passed after his arrival back in Australia until the application for a Protection visa was lodged with the Department.

3. The applicants are a family unit from Tonga. The primary applicant is the husband of the second applicant, and the father of the third and fourth applicants. Although the claims relate to the primary applicant, they are relied upon by all applicants.

4. The primary applicant claims that he left Tonga because it was dangerous for him to live there. His father wanted him to have the family land, however his older brothers resisted this and did not want him to have the land, so they threatened to harm him if he returned to Tonga and lived on the family land. He also claims that his older brothers harassed, intimidated and physically harmed him when he was in Tonga.

5. He claims that since 2013, he has travelled to Australia to work as a seasonal worker to get away from his brothers. He said in the application that since 2019, he has remained in Australia because he is fearful of his brothers and some other members of his extended family who sided with his older brothers. Notwithstanding that comment, the Tribunal is satisfied that this is incorrect as his migration history shows that he returned to Tonga in January 2023.

6. He claims to have nowhere else to go in Tonga but to live on his father’s land. He has sought advice from a lawyer, the pastor from his church and his official village officer regarding his problem, but apparently no one can stop his brothers from not wanting him to return to Tonga. He went on to claim that if he returns to Tonga, his extended family, especially his older brothers will abuse and harm him because they consider that he influenced their father to give the land to him.

7. In regards to seeking help from the Tongan authorities, he said that the Tongan police are not reliable and some of his relatives are in the police force so he was reluctant to approach the police for help. In conclusion to his claims, he said that Tonga is dangerous because there are armed robberies.

8. Specifically, the claims he expressed in his application are:

Provide reasons why this applicant left that country or those countries:

I LEFT TONGA BECAUSE IT WAS VERY DANGEROUS FOR ME TO LIVE IN TONGA DUE A VERY SERIOUS FAMILY FEUD TO DO WITH MY FATHER'S LAND. MY FATHER WANTS ME TO OWN OUR FAMILY LAND. BUT MY ELDER BROTHERS DID NOT WANT ME TO HAVE THE LAND. FOR THIS REASON MY ELDER BROTHERS HAVE THREATENED TO CAUSE HARM TO ME IF I EVER RETURN TO TONGA AND LIVE IN OUR FAMILY LAND. I WAS ALWAYS LIVE IN FEAR IN TONGA THAT MY BROTHER MAY CAUSE A SERIOUS HARM TO ME PHYSICALLY.

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.

MY ELDER BROTHERS WERE HARRASSING ME AND HAD CAUSED PHYSICAL HARM TO ME WHENEVER I WAS IN TONGA. I CAME TO AUSTRALIA FEW TIMES AS A SEASONAL WORKER BEFORE I CAME AND HAVE REMAINED IN AUSTRALIA SINCE 2019 IN STUDENT VISA TO TODAY BECAUSE I WAS SO FEARFUL IN TONGA OF MY BROTHERS AND THEIR ASSOCIATES. THEY WERE CAUSING PHYSICAL HARD TO ME BECAUSE THEY WANTED ME TO LEAVE TONGA AND NEVER RETURN BACK BECAUSE THEY HATE TO SEE ME HAVING THE FAMILY LAND FROM MY FATHER. I HAVE NO WHERE ELSE TO GO AND LIVE IN TONGA BUT ONLY AT MY FATHER'S LAND.

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 WENT TO SEEK ADVISE FROM A LAWYER, AND MINISTERS (PASTORS) OF MY CHURCH AND OUR OFFICIAL VILLAGE OFFICER IN REGARDING TO MY FAMILY FEUD TO DO WITH OUR FATHER'S LAND. BUT NO ONE CAN STOP MY BROTHERS  FROM HATING TO SEE ME IN TONGA. THEY HAVE INTIMIDATED ME SO MUCH THAT I NEVER WANT TO RETURN BACK TO TONGA.

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

Yes

Give details including:

• where this applicant tried to move
• why this applicant was unable to move

• where this applicant moved to and what happened.

SINCE 2013 I CAME TO AUSTRALIA AS A SEASONAL WORKER, MAINLY TO WORK AS A FRUIT PICKER BUT ALSO TO GET AWAY FROM MY ELDER BROTHERS. SOME MEMEBERS OF OUR EXTENDED FAMILY TAKE SIDES AND IN FAVOUR WITH MY ELDER BROTHERS WHO HAVE HATED TO SEE ME HAVING A PIECE OF LAND FROM MY FATHER. IN THE PAST, WE SOMETIMES FOUGHT PHYSICALLY AND. DUE TO THEIR TRYING TO INTIMIDATE ME, I FOUGHT BACK AND THEY WERE MORE FURIOUS BECAUSE THEY HAD EXPECTED ME TO LEAVE THE LAND, AND GO TO FIND SOMEWHERE ELSE TO LIVE.

Explain what the applicant thinks will happen to them if they return to that country or those countries:

IF RETURN WITH MY FAMILY TO TONGA, MY EXTENDED FAMILY ESPECIALLY MY ELDER BROTHER WILL ABUSE ME AND CAUSE HARM TO ME.. I ALSO FEAR THAT THEY MAY KILL ME DUE TO THE JEALOUSY AND DISAGREEING WITH MY FATHER TO GIVE ME HIS LAND.

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 HAVE EXPRIENCED HARRASSMENT, AND CONSTANT ABUSE FROM MY ELDER BROTHERS IN TONGA. I FEAR TO RETURN TO TONGA BECAUSE THEY WILL CAUSE PHYSICAL HARM TO ME. I BELIEVE THEY THINK THAT I HAVE INFLUENCED MY FATHER TO GIVE ME HIS LAND.

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.

SINCE 2013 I HAVE STARTED COMING TO AUSTRALIA AS A SEASONAL WORKER, AND IN 2019 I CAME AS A STUDENT WITH MY WIFE AND OUR DAUGHTER. THE POLICE IN TONGA ARE UNRELIABLE TO ME. SOME OF THEM ARE MY RELATIVES AND I WAS RELUCTANT TO APPROACH THEM BECAUSE THEY ARE VERY BIAS AND WILL NOT PROTECT ME AND MY FAMILY. WE FEAR FOR OUR LIVES BECAUSE WE KNOW, IT IS EXTREMELY DANGEROUS FOR US TO RETURN AND LIVE IN TONGA.

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 about why

this applicant is unable to relocate.

I CAME TO AUSTRALIA BECAUSE MY YOUNG FAMILY IS SAFE IS AUSTRALIA. TONGA IS VERY DANGEROUS BECAUSE SOME GROUP OF INDIVIDUALS DO ARM ROBBERIES AND THIS IS ANOTHER REASON WHY I AM SO FEARFUL TO RETURN TO TONGA. PLEASE GIVE ME A CHANCE WITH MY WIFE AND OUR CHILDREN TO LIVE PERMANENTLY IN AUSTRALIA BECAUSE WE ARE SAFE IN AUSTRALIA. IF WE RETURN TO TONGA, I DO NOT DOUBT THAT MY BROTEHRS WILL CAUSE SERIOUS HARM TO ME AND WILL AFFECT MY WIFE AND CHILDREN AS WELL.

1. On 27 October 2023, the Department sent a letter (by email) to the primary applicant and acknowledged receiving the application. In that letter, he was reminded that as their application form stipulated, all claims, supporting documentation and evidence should have been provided when he lodged the application. He did not respond to that letter or provide any additional material to the Department.

2. Subsequently, on 27 February 2024, the Department dispatched to the primary applicant a letter outlining that consideration in regard to their application had commenced, and the primary applicant was invited to provide further information regarding the claims for protection. The primary applicant was advised that in order for the delegate to be satisfied that the claims for protection were genuine, he was invited to provide information about why there had been a delay in lodging the Protection visa application. The primary applicant was also asked to provide details of his family members in Australia, Tonga and other countries; and asked to provide further information and documentary evidence about what had happened to him in Tonga, including the names of individuals, along with the dates and locations of the events which took place. In particular, the primary applicant was requested by the delegate to provide details of all family members involved in the dispute over the land, including their names and dates of birth, their relation to the applicant, and their current addresses or locations. He was also asked that if the family member is deceased, he was to provide that person’s date of death.

3. The primary applicant was also asked to provide the details of any threats or harmful experiences he may have encountered; and any such harmful experiences he believed he will encounter should he return to Tonga. He was asked to include the identity of the individuals involved, the dates, and the locations of the events.

4. He was also asked for a detailed explanation of how he became aware that his father will give him the land, including the date of his father transferring ownership of the land to him and any documentary evidence to support this claim. He was also asked to provide information on who currently has possession of the disputed land in Tonga, including whether his father was the sole owner of the land, and if there is any evidence to support this. He was also asked to provide information about the land, such as whether it was a single block of land, or did it consist of more than one block of land, and to provide any documents that confirmed the location of the land, the size of the land, and/or the use of the land to which he was referring to, and explain how that land was being used.

5. Furthermore he was asked by the delegate to provide information on whether the disputed land is farmland, and whether the land includes his family household residence. He was also asked to provide details of the location or the address of the land, and also provide documentation to show that the land was situated at that address or location. He was then asked to information on whether his father’s household residence is in a different location from the disputed land, and if it was, what was the location or address of his father’s residence.

6. Finally, the delegate asked him to provide details about who he sought assistance from in Tonga, including the names and details of any individuals and/or the organisations those people belong to. He was also asked to provide the dates of all meetings or discussions he had with those people, along with an outcome from those discussions.

7. At the time of the assessment of the application and the decision of the delegate on 18 May 2024, the primary applicant had not provided any explanation or further information to the Department in respect to the request made of him on 27 February 2024. The applicants were notified of the decision to refuse their application, and they were provided with a copy of the delegate’s Decision Record.

8. Subsequent to that, on 13 June 2024, the applicants lodged a review application with the Tribunal, and in doing so, they provided the Tribunal with a copy of the delegate’s Decision Record. In acknowledging the receipt of their review application, the Tribunal wrote to the primary applicant on 21 June 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.

9. On 8 August 2024, the Tribunal dispatched an email to the primary applicant and enclosed an invitation for the applicants to attend a hearing scheduled for 5 September 2024. Included with the invitation was a ‘Response to hearing invitation’ template (‘template’) and he was asked to complete the template and return it to the Tribunal within seven days. The primary applicant did not respond to the Tribunal’s email, nor was the completed template returned to the Tribunal.

10. On 4 September 2024, the Tribunal received an email from the primary applicant in which he explained:

    I apologise for this late notice.

    I regret to inform you that I will not attend the hearing tomorrow, 5/9/2024.

    Please use the same information provided in our original application for the assessment of our case.

    I am genuinely fearful, to return back to Tonga with my family, because it is not safe for us to live in Tonga, due to our situation as explained in our application.

    I also apologise that I can not provide enough evidence necessary in order for the final decision to be in our favour.

    I believe this is also the pathway to request for ministerial intervention in our favour.

11. The Tribunal is satisfied (and so finds) that there has been no supporting information, material or evidence provided to either the Department or the Tribunal in support of the claims relied upon by the applicants. Having regard to the email received from the primary applicant in which it was indicated that the applicants would not be engaging in the Tribunal’s review hearing, a decision was made on the material currently before the Tribunal. That material consisted of the Department’s file along with the review application and the delegate’s Decision Record provided to the Tribunal by the applicants.

    APPLICANTS’ CLAIMS

12. Earlier in these Reasons, it was described that the primary applicant had been provided with opportunities to provide more information, material and evidence to both the Department and the Tribunal to establish and validate the protection claims relied upon. There has been no response to those invitations, and therefore the only material of which an assessment can be undertaken in regard to the claims is the information which is expressed within the application. The crux of those claims is that the primary applicant is not able to return to Tonga because he has a well-founded fear of harm from his older brothers and some other members of his extended family. He also claims a well-founded fear in relation to Tonga being a dangerous place to live because there are armed robberies.

13. A claim relied upon by the primary applicant is that his father wanted him to have the family land, however his older brothers opposed this. He was threatened by his older brothers that they would harm him if he returned to Tonga and lived on the family land. He further claimed that his older brothers harassed, intimidated and physically harmed him when he was in Tonga, however he has never provided any details of his past experiences, such as details of the individuals involved, the dates or the locations where that took place. Nor has he ever provided any explanation or evidence of how he became aware of his father’s intention to give him the land, or when his father intends to carry out that transfer of ownership of the land. There has not been any documentary evidence to support this claim, and nor has he provided any information, material or evidence that the land actually exists, and if it did exist, what the size of the land was, its location or address and for what reason the land is being used.

14. The claims within his application go on to say that since 2013, he has travelled to Australia to work as a seasonal worker to get away from his brothers, and since 2019 he has remained in Australia because of the well-founded fear of harm from his brothers and some members of their extended family. He also said that other than living on his father’s land, he has nowhere to go in Tonga. As it was identified earlier, although his claim in the application is that he has not returned to Tonga since 2019, he did go back to Tonga in January 2023 where he stayed for a week.

15. He has claimed within the application that he sought the assistance of a lawyer in Tonga, as well as the pastor from his church and his official village officer regarding this matter. However, he claims that no one can stop his brothers from harming him in Tonga over the alleged land dispute. He has never provided any information to the Department or the Tribunal as to who he consulted with, or sought assistance or advice from, such as the names and details of the individuals or professionals, and organisations (if any) they belongs to. Nor is there any information about when or where those consultations took place.

16. In regard to whether he thought that the Tongan authorities can and will protect him from harm if he returned, he said that he would not be protected. He explained that since 2013, he started coming to Australia as a seasonal worker. In 2019, he came to Australia subject to the conditions of a Student visa with his wife and their oldest child. He went on to say that if he were to return to Tonga, he has nowhere to live apart from on his father’s land. In regard to state protection in Tonga, he was reluctant to approach the police because they are very biased, they are unreliable and would not be able to protect him and his family. In that regard, the Tribunal notes that the last time he returned to Tonga was [in] January 2023. He stayed for a week before returning to Australia [in] January 2023. His wife (second applicant), and his children remained in Australia at that time.

17. Although he had last arrived in Australia [in] January 2023, the application for a Protection visa was not lodged with the Department until almost nine months later on 11 October 2023. When asked by the Department to explain why there had been such a substantial delay between when he last arrived in Australia to when he made the application, he did not respond or provide information about that delay.

18. A further claim relied upon by the primary applicant is that Tonga is a dangerous place, with armed robberies taking place in the country. He did not provide information, documentary evidence or other material to explain what happened to him in regard to armed robberies in Tonga, or why he has a well-founded fear of returning because of those offences. There is no indication within the application that he was specifically or personally targeted for armed robberies, and the Tribunal is satisfied that he has not provided any satisfactory or reasonable information about this claim. Notwithstanding the claim about his well-founded fear relating to armed robberies, over the 10 years between 2013 and 2023 he made numerous trips back to Tonga where he would stay for several months before coming back to Australia.

    COUNTRY INFORMATION

    State protection – Tongan Constitution

19. 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)

20. 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.

21. 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.

22. 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,[21] 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.[22] 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).[23] The legislation goes on to provide further powers for the police to take the identifying particulars of a person in lawful custody,[24] as well as powers to search a person without arrest,[25] and the search of places, vehicles, vessels and aircraft without warrant.[26]

    [21]Tonga Police Act, s 96, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 10 September 2024.

    [22]Tonga Police Act, ss 115 and 117, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 10 September 2024.

    [23]Tonga Police Act, s 116, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 10 September 2024.

    [24]Tonga Police Act, s 118, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 10 September 2024.

    [25]Tonga Police Act, s 122, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 10 September 2024.

    [26]Tonga Police Act, s 123, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 10 September 2024.

23. 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.[27]

    [27]Tonga Police Act, s 125(1), wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 10 September 2024.

    State protection – Tonga Criminal Offences Act

24. 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.

25. 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.[28]

    (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.[29]

    (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.[30]

    [28]Matangi Tonga Online, 22 November 2023, accessed 10 September 2024. 

    [29]Matangi Tonga Online, 18 October 2021, accessed 10 September 2024.

    [30]Matangi Tonga Online, 12 January 2021, accessed 10 September 2024.

26. 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.[31] Other certain information available to the Tribunal outlines that since 2006, the Australian Federal Police (AFP) have delivered police assistance in Tonga.

    [31]Smartraveller.gov.au, accessed 10 September 2024.

27. 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 to become a trusted and respected policing service that works in partnership to reduce crime and build safe and secure communities.

1. In 2021, a memorandum of understanding (MOU) between the 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.[32] 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.[33]

   [32]Tonga Police signs bilateral agreement with Australian Federal Police, Fangongo, 12 February 2021, accessed 10 September 2024.

   [33]AFP across the world, Australian Federal Police, 12 July 2021, page 9, accessed 10 September 2024.

2. When careful consideration is applied to the country information, 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 the 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.

3. 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 effective state protection would be available to the applicants upon their return to Tonga should they need to do so.

4. 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.

5. Further to the country information, the Tribunal also recognises the High Court’s observations that the Convention does not require or imply the elimination of all risks of harm, and no country could guarantee that its citizens will at all times, and in all circumstances, be safe from violence.[34]

   [34]Minister for Immigration and Multicultural Affairs v Respondents S152-2003 [2004] HCA 18, [26] and [117].

   DELAY IN LODGING APPLICATION

6. When considering the applicant’s delay in lodging his application, the Tribunal is aware that a delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible, and the significance of any delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[35]

   [35]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.

7. The claims relied upon by the primary applicant have been well ventilated within these Reasons, and the Tribunal is aware of the migration history for the applicant, in particular the primary applicant and the second applicant. That migration history shows that both of those applicants have made nine trips to Australia over a period of 10 years.

8. [In] September 2018, the primary applicant arrived in Australia. This was his second last trip to Australia. Nine months later, the second and third applicants arrived together in Australia [in] June 2019. This was their last trip to Australia. Since then, the fourth applicant was born in Australia on [date], and in January 2023, the primary applicant returned to Tonga where he stayed for a week. He then flew back to Australia.   

9. It was not until almost nine months after the primary applicant arrived in Australia for the last time that the Protection visa application was lodged on 11 October 2023. Notwithstanding the primary applicant’s claims of having a well-founded fear of his older brothers back in Tonga, he did not immediately lodge the application with the Department, and nor has an explanation been provided to the Department or the Tribunal for that delay.

10. In respect to any consideration given by the Tribunal about that delay, guidance is found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 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, when careful consideration is given to the delay of almost nine months between the primary applicant’s last arrival in Australia to when the application for a Protection visa was lodged with the Department, the Tribunal is satisfied (and so finds) that under the circumstances relating to the features of this case, that delay is a significant delay.

11. When careful examination is undertaken of the applicants’ claims for protection, and consideration is given to assessing the genuineness or depth of the applicants’ fear of persecution should they return to Tonga against all the known facts of this matter, including 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 the applicants do not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[36]

    [36] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

    REFUGEE FINDINGS, DISCUSSION AND CONCLUSIONS

12. 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 applicants meet 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 applicants’ case.[37]

    [37]Migration Act 1958 (Cth), s 420.

13. By its own character, a review hearing is also inquisitorial in nature, and although the Tribunal can seek out evidence it considers is required in order for it 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].

14. There is no requirement placed upon the Tribunal to make the applicants’ case for them. It is their responsibility to specify all particulars of their claims to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claims. There is no obligation or responsibility on the Tribunal’s part to specify, or assist in specifying any particulars of their claims, or to establish or assist in establishing their claims,[39] nor is it required to accept uncritically any of the allegations they make.[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.

15. The mere fact that the applicants claims they have a fear of persecution for a particular reason does not establish either the genuineness of their asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because they claim that they 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 applicants to satisfy the Tribunal that all the statutory elements are made out.

16. 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.

17. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicants being removed to Tonga, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm on the grounds of the primary applicant’s brothers seeking to harm him over an alleged land dispute. His father is alleged to have left the family land to the applicant, and his older brothers oppose the transfer of the land to the primary applicant. It is also claimed that the applicants have a well-founded fear of returning to Tonga because of armed robberies.  

18. Notwithstanding that there has not been one iota of evidence provided which validates those claims, when carefully considering the claims, the Tribunal is not satisfied (and so finds) that the claims relied upon by the applicant do not fall within the ambit of the prescribed provisions of section 5J(1)(a) of the Act. Therefore, the Tribunal is further satisfied that the applicants do not have a well-founded fear of persecution as they do not fear that if they returned to Tonga they will be persecuted for the reasons prescribed in section 5J(1)(a) of the Act. The Tribunal is not satisfied (and so finds) that they are not refugees as defined in section 5H(1) of the Act and accordingly, they are not persons in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION CONSIDERATIONS

19. Having already concluded that the applicants do 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 them being removed to Tonga, there is a real risk that they 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).

20. 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.

21. The Tribunal’s observations of the claims made by the applicants in the application have already been explained in these Reasons. Briefly, the claims relate to the primary applicant having a well-founded fear of being harmed because his older brothers oppose their father’s decision to give his father’s land to the primary applicant. He claims to also have a well-founded fear of harm from armed robberies in Tonga.

22. The primary applicant claims that he is unable to access state protection from the Tongan Police because the Tongan police are not reliable and some of his relatives are in the police force so he was reluctant to approach the police for help.

23. 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 applicants’ removal from Australia, there is a real risk that they would suffer significant harm if they 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.

24. 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.

25. When carefully assessing the claims made by the applicants, the Tribunal is not satisfied the harm the applicants fear could constitute either of the forms of significant harm as defined in section 36(2A)(a)-(c) of the Act as they have not claimed that they will be arbitrarily deprived of their life, the death penalty will be carried out on them or that they will be subjected to torture. Nor is there any information or evidence before the Tribunal to indicate that the applicants would suffer any of these forms of ‘significant harm’ in section 36(2A)(a)-(c) of the Act if they returned to Tonga.

26. The Tribunal has also carefully considered whether the harm they claimed they 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.

27. When lodging the application for a Protection visa, the primary applicant did not disclose any information, evidence or material to substantiate any part of the claims made. Even when provided the opportunities to do so by the Department and the Tribunal, there was still a reluctance for that information to be forthcoming, and when asked by the Department to provide specific answers to a number of queries about the claims, there was no response from the primary applicant.    

28. As it was referenced earlier in these Reasons, the High Court has observed that the Convention does not require or imply the elimination of all risks of harm, and no country could guarantee that its citizens will at all times, and in all circumstances, be safe from violence.[48]

    [48]Minister for Immigration and Multicultural Affairs v Respondents S152-2003 [2004] HCA 18, [26] and [117].

29. Outlined earlier in these Reasons is country information relating to Tonga. When careful consideration is applied to that country information relating to the Tongan Constitution, the Police Act, the Tonga Criminal Offences Act, and the MOU between the AFP and the Tongan Police Force, the Tribunal is satisfied (and so finds) that the laws of Tonga appropriately and sufficiently addresses crimes related to threats of harm to persons within Tonga, as well as offences of causing injury to another person, including armed robberies. Notwithstanding that the primary applicant claims that he has relatives who are serving officers in Tonga’s police force, there has never been any information, material or evidence provided to the Tribunal to validate that claim.

30. Even if there was any substance to that claim, the Tribunal is also satisfied (and so finds) that the applicants would be able to avail themselves to effective state protection, and could obtain from the Tongan authorities protection such that there would not be a risk that they would suffer significant harm upon their return to Tonga.[49]

    [49]Migration Act 1958 (Cth), s 36(2B)(b).

31. After having considered all of the applicants’ claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if they returned to Tonga now or in the reasonably foreseeable future they will be arbitrarily deprived of life, the death penalty will be carried out on them, or they will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will they be subjected to degrading treatment or punishment.

    SHOULD THE TRIBUNAL MAKE A REFERRAL TO THE MINISTER

32. When listing the applicant’s application for a hearing, the Tribunal advised the primary applicant of the date, time and place of the hearing. At a subsequent time, the primary applicant advised the Tribunal that the applicants waived their entitlement to a hearing and suggested their case was a pathway for the Tribunal’s referral of this matter to the Minister.

33. The Tribunal observes that no supporting evidence in the form of an affidavit, statement or statutory declaration has ever been provided by the applicants to either the Department or the Tribunal which would support their protection visa application, or indeed support the purported propositions why they were persons in respect of whom Australia has protection obligations.

34. The Tribunal is particularly mindful that when considering an applicant’s request for a referral for Ministerial Intervention, consideration should be given to the provisions of the President’s Direction concerning referrals made for intervention by the Minister, in particular the provision that:

    16.1Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.

35. For completeness, the entirety of the provisions provided within the President’s Directions are:

    16. Referrals for ministerial intervention

    16.1 Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.

    16.2 The member may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.

    16.3 The circumstances which the member considers warrant the case being brought to the Minister’s attention should be set out in the member’s statement of decision and reasons and may also be set out in the referral letter to the Department.

    16.4 If an applicant requests a member to refer a case to the Department and the member decides not to do so, the member should refer to the request in the statement of decision and reasons and note that the applicant may make a request directly to the Minister.

    16.5 If the AAT has no jurisdiction to conduct a review, the Minister has no power under section 351 or section 417 to intervene. In such circumstances, the case should not be referred to the Department.

1. The Tribunal notes that notwithstanding the provisions outlined in Part 16.1 of the President’s Direction, there is a discretion afforded to the Tribunal within Part 16.2 that a referral can be made to the Department on the basis that the Tribunal considers that there are facts or circumstances which warrant further investigation by the Department.

2. With respect to the applicants’ application, the Tribunal has carefully considered the claims made by the primary applicant as they are expressed within the application. As it has already been identified in these Reasons, there is nothing in the way of evidence, information or other material before the Tribunal; which supports or validates those claims; or which confirms that a referral should be made by the Tribunal for Ministerial Intervention; or which warrants a recommendation for further investigation by the Department .A number of opportunities have been provided by the Department and the Tribunal for the applicants to provide supporting evidence, however none has been forthcoming. After giving careful consideration to those features just identified, the Tribunal is of the view that the facts and circumstances of this matter do not warrant further investigation by the Department, or a referral for Ministerial Intervention.

3. The Tribunal further notes that the Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of the Minister’s public interest powers, and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard.[50]

   [50]Mohammed v Minister for Immigration & Anor [2017] FCCA 2356, [29].

4. Respectfully, for those reasons explained, the Tribunal declines to make a referral or recommendation as proposed by the applicants as it is a matter for their discretion as to whether they make such a request via the appropriate pathway.

   CONCLUSION: REFUGEE CRITERION

5. Having considered all the circumstances as they apply individually and cumulatively to the applicants, the Tribunal finds that there is not a real chance that they would be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in Tonga. The Tribunal also finds that their fear of persecution is not well-founded as required by section 5J of the Act, and therefore, they are not refugees within the meaning of section 5H of the Act.

   CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

6. Having considered all the circumstances as they apply individually and cumulatively to the applicants, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Tonga, they will be exposed to a real risk of suffering significant harm.

   OVERALL CONCLUSION

7. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under section 36(2)(a) of the Act. Having concluded that they do not meet the refugee criterion, the Tribunal has considered the alternative criterion and is not satisfied that they are persons in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

8. There is no suggestion that the applicants satisfy section 36(2) of the Act based on being members 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, they do not satisfy the criteria in section 36(2) of the Act.

   DECISION

9. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Wayne Pennell
   Senior 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.

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   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.

   …