2427953 (Refugee) - [2024] ARTA 785

2427953 (Refugee) [2024] ARTA 785 (16 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2427953

Tribunal:General Member S Manera
Date:16 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 16 December 2024 at 5:10pm

CATCHWORDS
REFUGEE – protection visa – Tonga – employment – homelessness – fear of physical assault –involvement in criminal gangs – deportee – natural disasters – drug trafficking – police corruption – separation from family in Australia – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994, Schedule 2
CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
GLD18 v MH [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 12 August 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant, who claims to be a national of Tonga, applied for the visa on 26 July 2024.
Evidence before the Department
On 30 July 2024 the applicant provided a statutory declaration dated 30 July 2024 to the Department in support of his claims for protection. In it, he claimed as follows:
·he arrived in Australia as [an age]-year-old [in] April 2014;
·his parents passed away in about 2019;
·the applicant believes his [siblings] reside in [Country 1];
·he needs Australia’s protection for the following reasons:
ohe has never worked in Tonga and believes there are no work opportunities for him there. In Australia he has worked [in two occupations];
othe applicant does not have a home to which he can return in Tonga. He would be homeless in Tonga. His parents have passed away. They had sold their land and assets. His siblings have moved to [Country 1];
ohis friends and family in Australia have warned him that Tonga is going through tough times and it is not safe for him. He may be arrested by the police due to his status as a deportee;
othe authorities are intolerant of men like the applicant;
ohe has heard that he could be beaten up and seriously hurt by gangs;
othe Tongan police will not help him because they are scared of the Chinese and the gangs;
oTonga has faced many natural disasters including the COVID-19 pandemic and natural disasters such as earthquakes and a tsunami. Natural disasters have caused economic and social difficulties for Tonga;
odue to the recent disasters, there is no access to social services in Tonga. The applicant would have no access to money or support if he were to return to Tonga.
On 6 August 2024 the following documents were provided to the Department in support of the application for protection:
·written submissions by the applicant’s representative dated 5 August 2024;
·another copy of the applicant’s statutory declaration dated 30 July 2024;
·statutory declaration by the applicant’s aunt, [Aunt A], dated 5 August 2024;
·publication from the Department of Foreign Affairs and Trade (DFAT) titled ‘Tonga - Australia’s commitment to strengthening climate and disaster resilience in the Pacific’;
·publication from Australian Aid titled ‘Pacific Risk Profile Tonga’;
- copy of Matangi Tonga Online search results on ‘Pacific Islands’ dated 4 August 2024 with links to articles and advertisements including:
oPacific islands need stronger border against drugs traffickers (dated 1 August 2024);
oScientists arrive at HTHH Volcano to research cause of powerful eruption (dated Wednesday 22 May 2024);
oVacancy advertisement for a Climate Change Loss and Damage Officer.
A summary of the representative’s submissions are as follows:
·the applicant fears, due to a belief from his Australian-Tongan family and community and media outlets, that he would be exposed to significant and serious harm in Tonga. The Tongan authorities will fail to afford him the necessary protection;
·the Tongan community and Tongan authorities are struggling with the ramifications of economic distress, a situation exacerbated by recent earthquakes and volcanic activities;
·this confluence of adverse factors has apparently led to the Tongan authorities to seek and accept external support from nations including China;
·there is a notable increase in the involvement of young Tongan men in drug trafficking across the Pacific. Reports from various media sources alleged criminal gangs deliberately prey on vulnerable young men from Tonga for their operations;
·the Australian government has acknowledged a climate emergency, recognising the significant risk it poses to Pacific Island nations including Tonga;
·the Australian government should take into account the broader socio-economic situation in Tonga, including the impact of natural disasters on its infrastructure and economy as well as the changing aspects of its relationship to foreign entities like China;
·the applicant has not returned to Tonga in the past 10 years and does not have any family, property or assets in Tonga.
The applicant was not invited to an interview to discuss his claims for protection.
The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
Evidence before the Tribunal
The applicant applied for review to the Tribunal on 13 August 2024. The Tribunal finds the applicant has made a valid application for review.
The applicant did not provide any pre-hearing submissions to the Tribunal.
The applicant appeared before the Tribunal on 12 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Aunt A] and her husband [Uncle A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.
The applicant was represented in relation to the review. The applicant’s representative attended the hearing.
The Tribunal endeavoured to take oral evidence by telephone from another of the applicant’s [aunts], [Aunt B]. The Tribunal telephoned [Aunt B] on multiple occasions during the hearing, however was unable to connect and take evidence from [Aunt B]. No written statement from [Aunt B] has been provided to the Tribunal.
At the end of the hearing the representative informed the Tribunal that she would like to make post-hearing written submissions. The Tribunal requested that any further submissions be provided on or before 27 November 2024. On 27 November 2024 the representative wrote to the Tribunal and requested an extension of time of 7 days to provide submissions to the Tribunal. This took the new deadline to 4 December 2024. The Tribunal agreed to this request. On 6 December 2024 the representative again wrote to the Tribunal and requested a final extension of time until 9 December 2024 to provide any post-hearing submissions. To date, no post-hearing submissions have been received.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of Tonga, born in Nuku’alofa on the island of Tongatapu.
The applicant provided a scanned colour copy of his passport bio-data page in support of his protection visa application. This document states it was issued in Nuku’alofa.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Tonga, and as such his protection claims will be assessed against Tonga as the country of reference and ‘receiving country’ respectively.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
Economic hardship and lack of support
During the hearing the applicant stated that he came to Australia in 2014, when he was [age] years old. He travelled to Australia with his mother on a visitor visa. His mother left him in the care of her brother [Uncle C] (the applicant’s maternal uncle) and she returned to Tonga. She is now deceased. Since arriving in Australia, the applicant has lived with his maternal uncle, and his maternal aunts [Aunt A] and [Aunt B]. In October 2023 he was arrested and taken into immigration detention, where he has resided ever since. The applicant said that he did not recall whether his mother or Australian relatives had any plan for him after his arrival in Australia. His mother told him to stay Australia and find an opportunity to better his life here. He was not aware of his visa status. He engaged in casual work in Australia in [industry 1]. He has also received financial support from his aunts and uncle. He has previously been in a relationship with a woman in Australia, with whom he has 2 children. Their relationship ended approximately at the time the applicant was arrested and taken into immigration detention. There is an Apprehended Violence Order against the applicant in relation to his ex-partner.
The applicant stated that his siblings all reside in [specified countries]. He has not had contact with them since his mother passed away. He is not in contact with anyone in Tonga. He has never met his father. He stated that he does not have any family in Tonga, and does not know whether he has any extended relatives in Tonga.
The applicant said that if he were obliged to return to Tonga, he would have nothing to go back to. He does not know where or with whom he would live. He would have no support from family. He would be forced to turn to crime in order to get by. He would not be able to progress his life. He also said that there is a culture of drugs and violence amongst youth in Tonga. He may end up joining a gang for protection if there is no one else to support him and nowhere for him to go.
The Tribunal took oral evidence from the applicant’s maternal aunt [Aunt A]. She stated that she is concerned for her nephew because she does not think the quality of life in Tonga is very good. Deportees are ridiculed in society. There is also a culture of drug use. She stated that she has one sister in Tonga, who is another maternal aunt of the applicant. That sister is married and has one child who was approximately [age] years old. She works as [occupation 1] and her husband works in a plantation. [Aunt A] said that she is in regular contact with her sister in Tonga by phone, and she last visited her sister in Tonga approximately 3 or 4 years ago. [Aunt A] stated that she provided financial assistance to the applicant’s mother up until she passed away. She has also supported the applicant financially for many years in Australia. When asked whether she would continue supporting the applicant if he were required to return to Tonga, she said that her wish would be for him to remain in Australia.
During the hearing the Tribunal invited the applicant under s 359A of the Act to comment on information that would be the reason, or a part of the reason, for affirming the decision under review. The Tribunal informed the applicant that while he had stated that he does not have any family in Tonga, [Aunt A] had given evidence that he has a maternal aunt in Tonga, who is employed, married, and who has a son of similar age to the applicant. The Tribunal put to the applicant that this information undermined the applicant’s claim that he would be alone in Tonga and would have no family support. The applicant responded that his aunt in Tonga wouldn’t care about him as she has her own family.
The Tribunal has considered the evidence from the applicant and [Aunt A]. It notes and accepts that the applicant has resided in Australia since 2014, staying with and supported by his aunts and uncle until he was taken into immigration detention. While no documentary evidence has been provided to confirm that the applicant’s mother is deceased, the Tribunal accepts the oral evidence of the applicant and [Aunt A], who both gave evidence that the applicant’s mother is deceased. Furthermore, considering the applicant has lived in Australia for the past 10 years, and considering his oral evidence was corroborated by [Aunt A], the Tribunal accepts that the applicant’s siblings do not reside in Tonga and the applicant is no longer in contact with them. However, the Tribunal does not accept the applicant’s claim that he has no relatives left in Tonga. This is because [Aunt A] gave detailed oral evidence about her biological sister who lives and works in Tonga. The Tribunal prefers [Aunt A’s] oral evidence to the evidence of the applicant, considering the applicant left Tonga over 10 years ago and has not returned to the country since, the applicant expressed uncertainty during the hearing as to whether he had any extended family in Tonga, and [Aunt A] gave detailed evidence about her sister’s life in Tonga, the last time she saw her sister in Tonga, and the regular contact they maintain by telephone and social media. As such, the Tribunal does not accept the applicant would have no family support in Tonga, although it acknowledges the applicant does not have a relationship with his aunt and her family in Tonga.
The Tribunal also accepts the applicant has only completed school to [grade] in Tonga and, after that, he looked after his mother and engaged in subsistence farming. The Tribunal notes the applicant has engaged in relatively low skilled employment in Australia, such as assisting his uncle with physical labour, and working as [an occupation 2]. However, the Tribunal also notes that the applicant has managed to find and maintain work in Australia, despite his lack of English language proficiency. When asked how he managed to find work in Australia, he stated that he obtained work by asking others. On his evidence, he has also managed to open a bank account in Australia and, prior to his detention, he provided his children with financial support.
The Tribunal notes that in 2018 the Tongan labour force participation rate stood at 46.7%, and men had a higher labour force participation rate, at 56.2%.[1] The International Labour Organization country fact sheet on Tonga (Working Draft) dated 2024 states that, according to information accessed on 12 April 2024, the labour force participation rate in Tonga is 59.6%, with the men’s participation rate at 70.1%.[2] The Tribunal also notes that according to a report by the International Centre for Advocates Against Discrimination (ICAAD), ‘[r]egarding employment, the only jobs returnees are able to secure when arriving to Tonga are low-paying, short-term jobs.’[3] It also notes from the report that ‘[a]ll of the returnees interviewed believed that the scarcity of employment opportunities directly contributes to many returnees “going back to their old ways,” including participating in drug trade.’[4] However, the Tribunal also notes that informal employment makes up 97.1% of employment,[5] 26.5% of persons are employed in agriculture,[6] a large share of agricultural production is for subsistence and own production (but this is declining)[7], and the applicant has experience in subsistence farming in Tonga.
[1] Labour Force Survey, Government of Tonga, See for a link to download the 2018 Labour Force Survey Report.
[2] Tonga: Country Factsheet [Working Draft], International Labour Organization (2024) <wcms_924156.pdf>
[3] Tonga Returnees: Protecting the Right to Life with Dignity, ICAAD Human Rights Innovation
[4] Ibid.
[5] Tonga: Country Factsheet [Working Draft], International Labour Organization (2024) <wcms_924156.pdf>
[6] Ibid.
[7] Ibid.

The Tribunal notes, and put to the applicant during the hearing, that country information indicated he may be able to find work in Tonga to support himself, and he may be able to receive reintegration assistance to rebuild his life in Tonga. The Department of Home Affairs’ return and reintegration assistance program (RRAP) has recently been expanded to pay up to AUD7,500 cash plus expenses to any non-citizen leaving Australia. Under this program, non-citizens are eligible to receive counselling, help obtaining travel documents, pre or post-departure accommodation, and air tickets.[8] When the Tribunal informed the applicant that this financial support may mean that he would not be likely to fall in with a gang, the applicant responded that nothing was more important to him than his children.
[8] ‘Government gives itself power to pay any non-citizen to leave Australia’, The Guardian (24 August 2024) <
The Tribunal also put to applicant that, on his oral evidence, he has never previously been involved in gangs in Tonga or Australia. He has never been a part of a gang and he does not have ties to gangs. He has never been involved with drugs. On his oral evidence, he has kept to himself. Considering he has no ties to gangs in Australia or Tonga, and he has never been involved with drugs or gangster activity, the Tribunal may not accept that he would become involved with a gang in Tonga. The applicant said that if he has nowhere to stay then he may end up joining a gang to support himself.
The Tribunal also notes that the applicant left Tonga as [an age]-year-old, and while he has spent his entire adult life in Australia, it notes the applicant has maintained his Tongan speaking skills considering he gave oral evidence to the Tribunal via a Tongan interpreter.
The Tribunal has considered the applicant’s claim that he would not have any support in Tonga and, as such, would have no choice but to join a gang or resort to criminal activity to support himself. The Tribunal does not accept this. Firstly, this is because the Tribunal does not accept the applicant would have no support in Tonga. The applicant has been financially supported by [Aunt A] for many years in Australia and, considering her support for the applicant over the past 10 years, and considering she supported the applicant’s mother financially before her death, the Tribunal does not accept that she would cease to assist the applicant upon his return to Tonga. While, when asked whether she would continue providing financial support to the applicant, she stated that she wants the applicant to remain in Australia, the Tribunal notes that she did not state that she would deny him assistance. As such, the Tribunal finds that she would provide financial assistance to the applicant if he were to return to Tonga. Furthermore, the Tribunal notes the applicant has a maternal aunt in Tonga. While the Tribunal acknowledges the applicant does not currently have a relationship with her or her spouse or son, the Tribunal has considered that [Aunt A] maintains a relationship with her sister in Tonga. The Tribunal finds it would be reasonable for [Aunt A], who appears to do all she can to support her nephew, to ask her sister to provide support (such as accommodation) to the applicant upon return to Tonga.
The Tribunal also finds that the applicant would be assisted by programs designed to support returnees to Tonga with reintegrating into the community, finding employment and accommodation, and staying away from crime and gangs. The Dare to Dream Foundation, a group helping returnees to Tonga find their feet after being deported to the country, meets deportees when they arrive at the airport,[9] runs reintegration boot camps,[10] and assists new returnees in acclimating to life in Tonga.[11] There is no evidence before the Tribunal that the applicant would be ineligible for this assistance. The Tribunal also finds the applicant could access the Department of Home affairs’ RRAP, and receive up to AUD7,500 cash to help him resettle in Tonga, as well as assistance including but not limited to returns counselling, purchasing tickets, assistance obtain travel documents, accommodation assistance and reception assistance in Tonga.[12]
[9] Alice Lolohea, ‘They were deported to Tonga as strangers to their own land. Now these returnees are helping fight a drug crisis’, ABC News (12 May 2024) <
[10] Tongan group plans bootcamp to help deportees adjust to new life, ABC News (13 June 2019) < Tonga Returnees: Protecting the Right to Life with Dignity, ICAAD Human Rights Innovation
[12] Status Resolution Service, Australian Government Department of Home Affairs (12 December 2024) <
The Tribunal finds that, considering the financial and reintegration support available to the applicant, the Tribunal’s findings regarding assistance from the applicant’s aunts in Australia and Tonga, the fact that the applicant has not previously been involved with gangs or drugs and has no connection with either, and the applicant’s work experience and his resourcefulness to find work in Australia despite the absence of work rights and proficient English, the Tribunal does not accept the applicant faces a real chance of becoming involved with a gang in order to support himself financially, nor does the Tribunal accept the applicant faces a real chance of serious harm in Tonga for reasons of being a person with few connections in Tonga or a person returning to Tonga after a long absence.
Deportee to Tonga
The Tribunal notes the ICAAD’s report which indicates that deportees to Tonga are met with societal stigma and discrimination. The Tribunal accepts this report, as well as [Aunt A’s] oral evidence that deportees are mocked in Tonga,[13] however it finds the applicant would only face low-level discrimination, considering he is a proficient speaker of the Tongan language and he left Tonga at the age of [age], rather than as a young child. The Tribunal finds that while the applicant would face some level of social ostracism, it would not be compounded by linguistic and cultural barriers, considering the applicant has spent the majority of his life in Tonga. The Tribunal also places weight on [Aunt A’s] oral evidence that the applicant would be ‘mocked’, and [Uncle A’s] oral evidence that society does not take well to deportees. As such, the Tribunal accepts the applicant faces a real chance of low-level societal discrimination in Tonga due to his status as a deportee.
[13] Tonga Returnees: Protecting the Right to Life with Dignity, ICAAD Human Rights Innovation
Section 5J(4)(b) of the Act requires the Tribunal to consider whether the persecution involves serious harm. Section 5J(5) defines ‘serious harm’ for the purposes of s 5J(4)(b). It sets out a non-exhaustive list of types and levels of harm that will meet the serious harm threshold. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The Tribunal finds that while the applicant faces a real chance of low-level societal discrimination, which may cause some feelings of shame or embarrassment, the Tribunal does not accept this conduct amounts to serious harm as contemplated in the Act. When asked about his mental health during the hearing, the applicant stated that he is well mentally, but he misses his children. He further stated that since his arrival in Australia he has not taken any medication, he has not been sick, and he is no longer drinking alcohol. Furthermore, the Tribunal considers that the applicant has not engaged in gang culture and violence in Australia nor Tonga, and there is no persuasive evidence before the Tribunal that the applicant would be imputed to be involved with gangs, leading to further stigmatisation. The Tribunal does not accept, considering applicant’s circumstances, that the harm amounts to at least the same level of harm as the examples listed in s 5J(5).
The Tribunal has also considered the applicant’s claim that he may be arrested by the police due to his status as a deportee, and the authorities are intolerant of men like him. The Tribunal also notes the oral evidence of [Uncle A] that there have been deaths in Tonga at the hands of the police. However, there is no persuasive evidence before the Tribunal that the applicant faces a real chance of serious harm from the authorities for reason of being a deportee to Tonga, or for any other reason. While the Tribunal notes information in the ICAAD report that ‘[t]he returnee label automatically translates to troublemaker, and returnees are treated almost as scapegoats with all crime on the island automatically attributed to them,’[14] the Tribunal has not located any reports of deportees being charged with or convicted of crimes without evidence, and the Tribunal considers that the anecdotal evidence in the ICAAD report refers to societal discrimination against deportees, rather than official discrimination, as the report does not mention official discrimination against deportees. Furthermore, when the Tribunal asked [Uncle A] why the applicant would be at risk of harm from the police, [Uncle A] said that the police will find anything against anyone; their corruption affects everyone. The Tribunal notes that, according to a survey of 6000 people between February and March 2021, 66% of respondents thought that levels of corruption in their government had increased.[15] However, the Tribunal also notes the 2024 Freedom House Freedom in the World report for Tonga which states that a number of police officers accused of misconduct have been investigated, dismissed, or convicted of crimes in recent years.[16] While the Tribunal understands there are concerns about corruption in Tonga, there is no persuasive evidence before the Tribunal that the applicant would be singled out for targeting by police due to his status as a deportee or for any other reason. As such, the Tribunal does not accept the applicant faces a real chance of serious harm for reason of being a deportee, nor for reasons of police corruption.
Gangsters/drug culture in Tonga
[14] Ibid.
[15] 'Levels of corruption worsening in Pacific Islands, says public opinion survey', Matangi Tonga,
[16] 'Freedom in the World 2024 - Tonga', Freedom House <
The Tribunal has also considered a separate claim raised by the applicant that there is ongoing gang violence in Tonga and he risks harm from criminal youths. The applicant stated that he grew up watching fights between villages and amongst high school students. He stated that youths harm people because they assume one attend a specific high school. He would be targeted if he is seen hanging out with a particular group from a particular school. The Tribunal asked the applicant if he was part of any groups in Tonga, and the applicant responded that he was not. He stated that he does not know where he will live in Tonga and he may end up in a group. He then stated that he does not know what will happen to him in Tonga. The Tribunal accepts that there are organised crime groups operating in Tonga, committing a wide range of illegal activities.[17] On the country information, the Tribunal also accepts [Uncle A’s] evidence that drug use in Tonga is a big problem.[18] However, the Tribunal put to the applicant that considering he has never previously come to the adverse attention of any gangs or youths, and considering his absence of ties with gangs, the Tribunal may not accept that he faces a real chance of coming to the adverse attention of gangsters or youths. The applicant responded that he would have nowhere to stay and may end up in a gang to support himself.
[17] Tonga's crackdown on organised crime - two more Comanchero gang members arrested, Radio New Zealand (13 September 2024) <
[18] Ben McKay, Gang and drug problems on the rise in Tonga, National Indigenous Times (24 August 2024) < Inmates at Tonga's Hu'atolitoli prison reveal extent of drug crisis, ABC News Pacific (5 September 2024) <Inmates at Tonga's Hu'atolitoli prison reveal extent of drug crisis - ABC Pacific>
In relation to the current drug and crime crisis in Tonga, the Tribunal accepts that a spike in drug use has caused problems for society in Tonga, and drug-related prosecutions have substantially increased in recent years.[19] However, on the country information, the Tribunal finds that those particularly at risk of harm in Tonga include women and children escaping violence where drugs are involved, drug users or those with a history of drug abuse, or those involved in helping drug users.[20] There is no persuasive evidence before the Tribunal that the applicant, who does not fit any of these profiles, would face a real chance of serious harm as a result of drug-related crime in Tonga. In relation to his fear of harm from violent youths or gangs, the applicant has not previously come to the adverse attention of gangs, and there is no persuasive evidence that the applicant would come to the adverse attention of gangsters or violent youths in Tonga. Considering the Tribunal’s above findings on the supports available to the applicant in Tonga, and his lack of involvement with gangs and drugs in Tonga and Australia, the Tribunal does not accept the applicant has any particular vulnerability that would make him a particular target for gangs. As the Tribunal has found above, it does not accept the applicant would become a part of a gang or violent group in order to survive in Tonga. As such, the Tribunal does not accept the applicant faces a real chance of serious harm from gangsters or criminal youths in Tonga.
Natural disasters
[19] Joshua Mcdonald, ‘Tonga’s drug crisis: Why a tiny Pacific island is struggling with a meth epidemic’, The Guardian (28 November 2021) <
[20] Ibid.
The applicant has claimed that natural disasters have caused economic and social difficulties for Tonga, and there is no access to support services in Tonga. According to World Bank Group, Tonga is at risk of tropical cyclones and storms, tsunamis, volcanic activity, and drought.[21] The Tribunal acknowledges that Tonga has been affected by natural disasters including, but not limited to, the January 2022 Hunga Tonga-Hunga Ha’apai volcanic eruption and tsunami, 2018’s Tropical Cyclone Gita and 2020’s Tropical Cyclone Harold.[22] The Tribunal acknowledges these disasters have a significant impact on Tonga, and increase the likelihood of freshwater pollution. According to the publication from Australian Aid titled ‘Pacific Risk Profile Tonga’ provided by the applicant to the Department on 6 August 2024, Tonga is ranked second among the countries with the highest disaster risk due to high exposure to extreme natural events and sea level rise. According to the same publication, 100% of people in Tonga live within 5km of the coast. This report also states that Cyclone Gita impacted approximately 80% of Tonga’s population.
[21] Climate Change Knowledge Portal, World Bank Group (2021)
[22] As referred to in the publication titled ‘Tonga - Australia’s commitment to strengthening climate and disaster resilience in the Pacific’, provided by the applicant to the Department on 6 August 2024.
According to the DFAT publication provided by the applicant and titled ‘Tonga - Australia’s commitment to strengthening climate and disaster resilience in the Pacific’, ‘[c]limate change disproportionately impacts those already experiencing exclusion and marginalisation, including women, people with disabilities and people living in poverty.’ As the Tribunal has found above, the applicant faces a real chance of low-level social discrimination, however considering the applicant’s personal circumstances discussed above, it is not satisfied the applicant faces the same level of vulnerability as the groups referred to in this DFAT publication. The same report states that ‘Tonga is highly vulnerable to the impacts of climate change with most of the population and critical infrastructure is located on atoll islands.’[23]
[23] Ibid.
[Uncle A] stated that his brother in [a named village] still does not have access to safe drinking water after the 2022 tsunami, and he must boil or buy water. He said that the city areas receive assistance before the regional areas. However, the Tribunal notes that Tongan Red Cross emergency teams have been sent alongside authorities to various Tongan islands, including Mango, Fonoifua and Namuka Islands, to provide relief.[24] The Tribunal considers it reasonable that aid relief would first be provided to the most populous or worst-hit areas, and that it may take some time for comprehensive relief to be provided to all affected areas. Furthermore, the Tribunal also notes that despite severe destruction to many islands, only 4 deaths in Tonga were attributed to the tsunami, and the low number of casualties was attributed in part to the effectiveness of tsunami awareness education and outreach campaigns.[25]
[24] Red Cross in Tonga confirms urgent need for safe drinking water, International Federation of Red Cross and Red Crescent Societies (19 January 2022) <
[25] January 15, 2022 Tonga Volcanic Eruption and Tsunami, National centres for environmental information (24 May 2024) <
The Tribunal put to the applicant during the hearing that it did not seem that he would be impacted by natural disasters because of a refugee protection reason, rather, natural disasters impact the general population of Tonga. The applicant did not specifically comment on this issue, rather he stated that he had not committed a crime in Australia and yet he was detained in a maximum-security facility. The applicant’s representative stated at the end of the hearing that aid given by Australia to Tonga is inadequate. She did not comment on whether the applicant would be denied aid, social services, or disaster relief for any reason particular to him.
The Tribunal accepts that Tonga is susceptible to a range of climate change challenges, including stronger tropical cyclones, flooding, drought and heat waves, coastal erosion, increased acidity of ocean waters and sea level rise.[26] However, there is no persuasive evidence before the Tribunal that the applicant would be denied disaster relief or social security for any reason particular to him, and the applicant did not claim that he would be denied relief for a refugee reason. As such, the Tribunal does not accept the applicant would be denied relief or social security for a refugee reason. The Tribunal also does not accept, considering the lack of persuasive evidence, that any aid Tonga has received from China or any other country would adversely impact the applicant. The Tribunal is not satisfied on the evidence that the essential and significant reason for the harm is any of the 5 refugee protection reasons in s 5J(1)(a) of the Act.
Risk of suicide
[26] As referred to in the publication titled ‘Tonga - Australia’s commitment to strengthening climate and disaster resilience in the Pacific’, provided by the applicant to the Department on 6 August 2024.

The applicant stated during the hearing that the most important thing was for him to play a role in his children’s lives, and that it would be better for him to take his life than be separated from them. The Tribunal notes the applicant did not claim to have any suicidal ideation prior to the hearing, and he did not raise suicidal ideation when asked specifically about his mental health during the hearing. The applicant did not provide any medical or psychological evidence regarding his mental health, and he has not disclosed any attempts of self-harm to the Tribunal. The applicant’s representative stated that she would provide post-hearing submissions addressing the applicant’s mental health, however no such submissions have been received by the Tribunal to date. The Tribunal acknowledges the applicant would be very upset to leave his children, but considering the lack of persuasive evidence, the Tribunal does not accept that he would be driven to suicide.
Even if the applicant was driven to suicide, the Tribunal does not consider that this would involve persecution of the applicant by another person for one of the reasons specified in s 5J(1)(a).[27]
[27] CSV15 v MIBP [2018] FCA 669.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) for reasons of the economy, his lack of close family ties, his status as a returnee or deportee to Tonga, or the gang/drug culture in Tonga.
In relation to the claim that the applicant may face social discrimination as a deportee, the Tribunal is not satisfied this constitutes significant harm as defined in s 36(2A). Considering the applicant’s personal circumstances, namely his evidence in relation to his mental health, his lack of ties to gangsters, and the Tribunal’s findings in relation to family support the applicant would receive, the Tribunal is not satisfied that low-level societal discrimination would reach the necessary level of severity to constitute significant harm.
In relation to the applicant’s claims of facing harm from natural disasters and climate change, the Tribunal considers that the real risk of harm is one faced by the population generally and not by the applicant personally such that s 36(2B)(c) applies and there is taken not to be a real risk he will suffer significant harm in Tonga on this basis.
The Tribunal also notes the applicant’s evidence he may take his life if he is separated from his children. However, the Tribunal does not consider that this would be harm resulting from the acts or omissions of another person, as is contemplated by the definition(s) of significant harm.[28]
[28] GLD18 v MH [2020] FCAFC 2; CHB16 v MIBP [2019] FCA 1089; CSV15 v MIBP [2018] FCA 699.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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.
Date of hearing:  12 November 2024
Representative:  Mrs Wendy Jennifer Milojkovic
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

(18 December 2021) <