2502838 (Refugee)

[2025] ARTA 1319

2502838 (REFUGEE) [2025] ARTA 1319 (14 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2502838

Tribunal:General Member R Johnston

Date:14 March 2025

Place:Sydney

Decision:The Tribunal affirms the decision under review.

Statement made on 14 March 2025 at 12:30pm

CATCHWORDS
REFUGEE – protection visa – Tonga – political opinion – participation in anti-government protest – bashed and threatened by government officials – adverse information – information identical to other applications – application completed by unregistered agent without applicant’s knowledge of contents – fear of harm from uncle and his family – disputes over land, house and living arrangements, and argument and threat at family gathering – inconsistent claims and evidence – passage of time and no threats or harm to other family members – delay in applying for protection – no anti-government opinions or participation in protest, and new claim of fear of harm from protest organisers for not participating – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 367(1)(b)
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIAC v SZQRB [2013] FCAFC 33

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 January 2025 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a national of Tonga, applied for the visa on 10 November 2019. 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.

3. On 28 January 2025 the applicant lodged an application for review of the delegate’s refusal decision with the Tribunal.

   CLAIMS AND EVIDENCE

   Claims and evidence before the Department

   Protection visa application

4. The applicant lodged a protection visa application on 10 November 2019. In that application he provided the following:

   ·     He was born in [Year] in [Village 1, Island 1], Tonga. He is separated.

   ·     He speaks, reads, and writes Tongan and English.

   ·     His religion is [Church].

   ·     He worked on a plantation selling vegetables. Whilst in Tonga he lived at [Village 1, Island 1].

5. The applicant makes the following claims in his protection visa application form:

   ·     He protested against the government when the fires broke out in Nuku’alofa as he believed that the government at the time was behind all of that. He protested and gathered around his place during this time and they were all bashed, pushed around, and some were taken elsewhere and also they threatened his family. He had to get out because when all that happened one of the government officials said to him that he will come after him and his family if he did not pull back from that protest and take his signatures off the petition.

   ·     He was pushed around and also some were bashed and he was told if he did not pack up his protesters that his family would be at threat. Some of the protesters were thrown in jail as well. He was told if he did not leave the premises that they would put him in jail for however long they wanted to.

   ·     The people that they thought they could run to in order to get help they could not as they were the ones taking orders from the government and also its officials to harm them in a way that they would not protest and join the petition in any way.

   ·     Tonga is so small they cannot relocate within Tonga because it’s so small. The only option is to move away from Tonga so he feels safer.

   ·     He has been told that he will be jailed for however long that they wanted to leave them in there and also they would take them some place and if they were lucky they will probably see their families if they make it out. That was told to them by the government officials and police officers.

6. The applicant provided the following supporting documents with his protection visa application:

   ·     ‘Tohi Tangi ‘A E Kakai Ke Veteki E Fale Alea – Petition to Dissolve Government’, undated.

   ·     ‘New political party formed in Tonga ahead of snap election’, ABC Radio Australia, 4 October 2017.

   ·     ‘Cabinet wants to sue two former Prime Ministers’, Matangi, 27 September 2018.

   ·     Kalino Latu, ‘Petition to sue former PMs involved in Tongasat payment’, 1 October 2018.

   ·     An article by Kalino Latu from 10 August 2017 relating to a report of the former Auditor General exposing fraud and financial disarray in the government ministries.

   ·     ‘PM Pohiva says all MPs should go to jail, including himself’, Matangi, 21 September 2018.

   ·     ‘People still need help with Gita rebuild – Tonga Red Cross’, RNZ, 2 May 2018.

   ·     ‘King of Tonga Dismisses Prime Minister Pohiva’s Government’, The Diplomat, 31 August 2017.

   Department’s invitation to comment on information for a protection visa

7. On 3 December 2020 the Department wrote to the applicant inviting him to comment on information for a protection visa. It explained in accordance with s 57 of the Act it had received unfavourable information which does not support his application. It set out the information he provided in support of his claims for protection in his protection visa application is identical to information in a number of applications made by other persons and this leads it to suspect that the claims he has provided do not relate to him and his personal circumstances and are copied from another document.  The applicant was invited to comment on that information. The Department also requested the applicant give details of his family members residing either in Australia or elsewhere and his travel to other countries in the last thirty years.

   The applicant’s response to the Department and updated claims and information

8. On 31 May 2021 the applicant’s representative wrote to the Department indicating that an unregistered agent completed the applicant’s protection application without requiring any information from him apart from his passport and her fees. It was stated in that correspondence that the applicant will be providing his own protection claims as soon as possible. Attached was a form 1023 Notification of Incorrect Answers and a Form 1022 Notification of Changes in Circumstances. 

9. In the Form 1023 the applicant provided the following updated information:

   ·     An unregistered migration agent completed the application forms and provided his claims for protection herself without asking him for information.

   ·     He has a wife in Tonga, son in [Country 1], son in Tonga, daughter in Tonga, de facto partner in Australia, his father is deceased, a mother in Tonga, [sisters] in Tonga, brother in Australia, and [brothers] in Tonga.

   ·     He lived in [Village 1, Island 1] until approximately 2012. In 2012 until late 2015 he lived in [Village 2, Island 1]. In late 2015 until [May] 2016 he lived in [Village 3, Island 2].

   ·     He visited [City, Country 1] between [September] 2015 and [November] 2015 to visit his oldest son.

   ·     He completed primary school in Tonga between [Year] and [Year]. He attended high school in Tonga between [Year] and [Year].

   ·     He worked as a farmer and [occupation] between 1995 and June 2008. He was a sessional worker at [Region, Country 2] for three to four months in 2008.

   ·     In late 2008 to late 2015 he was a farmer and self employed as [an occupation]. From late 2015 until [May] 2016 he did odd jobs and lived off his savings.

10. On 24 June 2021 the applicant provided the Department with a statement of claims. In that document he advanced the following:

    ·     He fears being subjected to serious harm if he returns to Tonga. The person he fears harm from is one of his maternal uncles. That person is one of his mother’s [younger brothers].

    ·     In 2012 he contacted his uncle [on Island 2] to ask if he could build his house at this town allotment at the village of [Village 2, Island 1], Tonga. His uncle had moved to the main island to live with his wife’s family and his piece of land was unlikely to be used. His uncle agreed to give him his piece of land. [Village 2] is situated about two villages away from his parents’ village of [Village 1].

    ·     He built his house and his wife and children lived there. Everything was fine until his uncle came from [Island 2] to kick out and dismantled his house out in 2014. His uncle had issues with his mother because their parents were not happy living with him and his family in [Island 2]. They wanted to return home to [Island 1] but he refused to send them back. His mother contacted his uncle so many times and demanded that their parents should be returned to her in [Island 1] but he kept on refusing. His uncle was very angry with his mother and to get back at her he evicted him and his family from his land. They had a very big argument then and he threatened he would harm him that if he ever stepped foot on his land, he would harm him.

    ·     In late 2015 when he returned from [Country 1] he moved with his wife and children to the main island to her village of [Village 3]. Around December of 2015 his mother’s family had a family reunion and she called to invite him there. It was held at [Village 4] where his uncle and his family reside. It was quite a rainy day and cooking was delayed due to the wet weather. When his uncle arrived, he saw him sitting there and ordered him to hurry up and start the fire to roast the pigs. He protested but he threatened that if there are no dry woods to light the fire that he would use him as the wood for the fire ‘kapau e ‘ikai ha fefie ke tafu ‘aki e afi pea teu ‘omai koe ‘o tafu ‘aki e afi’. Before he could protest, he again threatened to shoot him if he did not carry out his order. His mother came from inside the house and dragged him away before the situation got any worse. However his uncle kept yelling after him that if he was to ever get hold of him, he would not hesitate to harm or shoot him. Others at the reunion were amazed at how bold his uncle was given he was a child of his oldest sister and he was the lowest in rank to her and her children. It should have been him to light the fire.

    ·     When he left Tonga to Australia in May 2016 his uncle was still sending him messages through relatives that if he ever met him in person, he would not hesitate to harm him simply because he dared to stand up to him in front of family members during the family reunion.

    Department’s request for more information for a protection visa application

11. On 10 January 2025 the Department sent the applicant a request for more information for a protection visa application. The Department outlined that the applicant’s statement of claims lacks key details of his claims for protection and he has not provided any evidence in support of his claims. The Department outlined that due to the lack of detail or evidence, it is concerned about the genuineness of his protection claims and it invited him to provide further information and documentary evidence about what happened to him. The Department’s letter included an erroneous reference to India, although invited him to provide details about the protest he mentioned in his written protection visa application as occurring in Nukualofa, including when it took place, whether he was a member of any political groups, his role in the protest, and who harmed and threatened him.

12. The Department outlined in their correspondence that the applicant’s passport contains a visa to [Country 1] that was cancelled. They requested information as to why it was cancelled and whether he had returned to Tonga since he departed and if so whether he experienced any problems with the authorities or any other person or group when he returned. It asked him to provide information about whether he has been involved in any political activity against the Tongan authorities since he has been in Australia.

13. The applicant did not respond to the Department’s request for information.

    Interview with the delegate

14. The Department did not invite the applicant to attend an interview to discuss his claims for protection. 

    The delegate’s decision

15. On 21 January 2025, a delegate of the Minister refused the applicant’s protection visa application. Due to the lack of detail in the applicant’s claims as well as the lack of evidence, the Departmental delegate was not satisfied that the applicant’s claims of being threatened by his maternal uncle and being threatened by the Tongan authorities because of his political opinion are credible.

16. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Tonga, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations.

    Claims and evidence before the Tribunal

    Review application

17. On 28 January 2025, the applicant lodged an application for review of the delegate’s decision.

18. With and in support of his application, the applicant submitted a number of documents to the Tribunal:

    ·     Recommendation letter from the Town Officer, Mr MB, of the [Village 3] Community dated 14 January 2025 stating that the conflict between the applicant and his uncle has escalated to a dangerous level. It is stated the issue stems from a longstanding family dispute and it recently culminated in a near-tragic confrontation with reports from witnesses indicating that during a heated altercation the applicant’s uncle made heated threats towards the applicant and the situation nearly turned violent and this situation caused significant tension and fear within the family and the wider community. It is stated the community of [Village 3] has expressed grave concerns about the applicant’s safety should he return to Tonga and the unresolved issues with his uncle, compounded by the intensity of the conflict, make his presence in Tonga a potential trigger for further violence. It is stated his return would not only endanger his life but also disrupt the peace and stability of the family and the community. Mr MB states allowing the applicant to remain in Australia would provide him with the opportunity to distance himself from the immediate threat and work towards resolving these matters in a safe and constructive manner and his absence from Tonga would help de-escalate tensions and prevent the situation from worsening.

    ·     Letter from Mr PF on behalf of the [Suburban region] Tongan Community dated 15 January 2025. That support letter states the applicant is a law abiding individual with integrity, respect, and a strong commitment to better himself. It is stated his circumstances stem from a serious and ongoing family conflict in Tonga involving is uncle and the dispute escalated dangerously, culminating in a recent incident where the applicant faced verbal abuse and physical threats that placed him in immediate danger. It is stated the volatile nature of the situation compelled the applicant to leave his family home in Tonga and that community members and local leaders in [Village 3] have expressed grave concerns for his safety should he return and have advised against his return to avoid further escalation of the conflict. It is stated remaining in Australia is vital for his personal safety and well-being and to give him a secure environment to rebuild his life. The letter also outlines the applicant is an upstanding and contributing member of society and sets out his personal qualities.

    ·     Letter of 3 January 2025 from his former landlord in Australia stating during his five year tenancy the applicant took great care of his property and demonstrated a high level of responsibility and respect and stating his personal attributes.

    ·     Letter of 16 January 2025 from the President of the [Suburb parish] of [Church] commenting on the applicant’s personal qualities, attributes, and character.

    ·     Reference for the applicant from a [volunteer minister] for [Church] commenting on his integrity, hard work, personal qualities, and community assistance.

    Pre-hearing evidence

19. On 18 February 2025 the applicant provided the Tribunal with a further copy of the supporting documentation he provided to the Tribunal with his review application.

    The hearing

20. The applicant appeared before the Tribunal on 7 March 2025 via videoconference to give evidence and present arguments. No witnesses were called to give evidence in support of the applicant’s claims. The applicant was not represented in relation to the review.

21. The hearing was conducted with the assistance of an interpreter in the Tongan and English languages. The Tribunal confirmed with the applicant they were able to understand the interpreter. The applicant was able to answer questions without hesitation and his answers demonstrated an understanding of the questions being put to him.

22. The Tribunal confirmed with the applicant at the start of the hearing that he felt well and able to discuss his claims and circumstances. The Tribunal reminded the applicant the could request breaks throughout the hearing as needed, in addition to the scheduled break.

23. The Tribunal is satisfied that the applicant had a reasonable and genuine opportunity to present evidence and submissions, be heard, and participate fully in the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for protection visa

24. 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.

25. 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.

26. 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).

27. 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.

28. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   REASONS AND FINDINGS

2. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Nationality

3. The applicant claims to be a citizen of Tonga and provided a copy of the bio-data page of his Tongan passport to the Department. The delegate was satisfied that the applicant is using his own identity and that he is a citizen of Tonga. The applicant has consistently claimed to be a citizen of Tonga. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of Tonga and Tonga is his receiving country for the purposes of assessing his claims for protection.

   Analysis, reasons and findings

4. The applicant provided the Tribunal at hearing with a detailed account of his protection claims, what he claims occurred in Tonga, why he fears returning to Tonga, and his work, family, and residential history. He provided the Tribunal with an update about his family circumstances in Tonga and his experiences in Australia. 

5. The applicant advanced the same claims at hearing as detailed in his updated written protection claims of 24 June 2021. He claims he will be harmed on return to Tonga by his uncle, and by extension his uncle’s children, owing to the conflict he had with his uncle in Tonga at a family reunion in 2016. He also raised concerns in respect of his lack of participation in riots and protests in Tonga in relation to the government in 2016 and harm he will face on return to Tonga as someone who did not participate in anti-government action. He confirmed at hearing that his initial protection claims in his 10 November 2019 written protection visa application in respect of participation in government protests and petitions and receiving threats from the police were not true and correct and were prepared by a former migration agent without his knowledge.

6. Whilst the Tribunal found the applicant’s oral evidence at hearing as to the harm he experienced from his uncle to be somewhat inconsistent to his written claims for protection, and it has not arrived at the same conclusions as the applicant as to his circumstances on return to Tonga in the reasonably foreseeable future, it found him overall to be a credible witness who was able to advance his protection claims in a detailed and straight-forward manner. The Tribunal’s findings and assessment in respect of his claims are set out in detail below.

   Claims in respect of political protests, petitions, and threats from the police

7. At hearing the Tribunal discussed with the applicant his initial protection claims as set out in his protection visa application and the correspondence his former migration agent sent to the Department on 31 May 2021 indicating that an unregistered migration agent completed his protection visa application without requiring any information from him apart from his passport and fees. He confirmed at hearing that the claims in his protection visa application were filled in from his former unregistered migration agent’s own ideas, not what he said were his concerns, and after that they never communicated again. He confirmed he was not involved in any protests or petitions with the government and he does not rely on the claims as set out in his initial protection visa application in respect of protesting and petitioning the government and being threatened by the police.

8. When the Tribunal raised with the applicant it may not accept on the basis of his evidence the claims as set out in his initial protection visa application and that it may find that he does not face a real chance of serious harm or a real risk of significant harm on return to Tonga on the basis of any protest action or his political opinion, he confirmed he had nothing to do with any political party in Tonga or any political issues. He stated he respects the government and that his inaction in respect of political riots and disturbances play a part in his fear of returning to Tonga. These claims are addressed in further detail below.

9. On the basis of the above and given the applicant’s evidence at hearing that he was not involved in any political groups in Tonga or in any petitions or protests, and that he did not write his claims in his initial written protection visa application, the Tribunal does not accept the applicant petitioned or protested against the government in Tonga at any time, or that he or his family were bashed, pushed around, threatened or jailed in respect of participating in any protest or petition action at any time.

   Non-disclosure certificate

10. The Department issued a non-disclosure certificate under s 376(1)(b) of the Act on 13 February 2025. The Tribunal discussed the non-disclosure certificate with the applicant at hearing. As the hearing was conducted by MS Teams, the Tribunal shared its screen in MS Teams during the hearing in order to show the applicant a copy of the non-disclosure certificate. The applicant confirmed he was able to see the non-disclosure certificate. The Tribunal explained the non-disclosure certificate covers a single document and has been issued on the basis that disclosure of the document would be contrary to the public interest under the Act as the document was given to the Minister in confidence and contains file numbers of other visa applicants. As to the validity of the certificate, the Tribunal explained the non-disclosure certificate has been signed and dated, the public interest reason for the certificate has been stated, and that the Tribunal considers it to have been validly issued. The applicant was invited to comment on the validity of the non-disclosure certificate although did not make any comment.

11. The Tribunal explained in respect of the document subject to the non-disclosure certificate itself, it did not consider the document to be relevant or that it will affect its decision in any way. It explained the gist of the document is that there are a number of other Tongan protection visa applications before the Department that contain the same or similar claims to the written claims he had set out in his initial protection visa application, which he had explained in his oral evidence were claims that were not made by him and were made by his former agent. The Tribunal explained the Department had set out that information to him in their correspondence to him of 3 December 2020, inviting him to comment on that information.

12. The Tribunal explained to the applicant that it did not consider that the information impacts its decision in any way and that it did not propose to disclose the information contained in the document to him. The applicant stated in response that this was the first time he had heard there was any communication from the Department that required a response from him and he never knew that. He did not make any other comment in respect of the non-disclosure certificate.

13. Given the applicant has explained he did not write his initial protection visa application claims and they were written by his former agent without his knowledge, the Tribunal does not consider the information contained in the document subject to the non-disclosure certificate to be information that would be the reason or part of the reason for affirming the decision under review. The Tribunal finds the information in the document to be of no probative value and immaterial to its decision and it gives it no weight.

    Claims in respect of harm from his uncle and his uncle’s family

14. The applicant stated at hearing that he fears harm on return to Tonga, including for his life, because of what happened between him and his uncle. He explained he fears his uncle and his uncle’s family will harm him over an incident that happened between him and his uncle at a family reunion. In discussing this with the applicant in detail at hearing he provided the following information about his interactions with his uncle and his background in Tonga:

    ·     He grew up living on the islands of [Island 1] but moved to [Village 3] in 1999-2000 due to better advancements for his children. It was much closer to the capital of Tonga and there were more chances for the children in the area. He lived at the one place in [Village 3] from the year 2000 until he came to Australia, living with his family in his wife’s family’s home. He did subsistence farming for work and grew some produce for his family in Tonga. He drove people in the village in his own car to places they needed to go for payment at times.

    ·     They had a family reunion in Tonga on his mother’s side which lasted for a whole week. It occurred in about March or April, probably at the end of March in 2016 before Easter. The cooking and catering rotated through different families but the food was always brought to his uncle’s home in the village of [Village 4], which is about twenty minutes away from his home in [Village 3].

    ·     The incident with his uncle occurred on the second day of the reunion. On this day he and his wife were supposed to cater for the day and they prepared everything at their own place. He wore nice clothes that day as it was a reunion. When he arrived at his uncle’s place, his uncle came out and told him off and said why did he come in clean clothing and he should have come in cooking clothing. In the Tongan cultural line, the mother is higher in the hierarchy in the family and so his mother’s brother is considered lower and he is not supposed to serve his mother’s children. His uncle said to him to go in and help with the cooking or he’d put him on the firewood. To that he said to his uncle no and he would put him in the fire. He was so angry at his uncle for saying that to him, and his uncle was angry and offended at what he said.

    ·     His uncle said are you going to go and cook or is he going to grab the gun and shoot him and put him in the fire. Everyone at the reunion at that time was trying to intervene and stop. His uncle went to his house and he saw his uncle come back with a gun and a knife. At that point he packed his wife and children and got into his vehicle and left and returned to [Village 3].

    ·     He did not return to the reunion. He went to the bush near his property in [Village 3] where they grow food.

    ·     Whilst he was in the bush, at the end of the reunion week, about two days after the incident, his uncle visited his house in [Village 3]. His wife told him his uncle had come and told her if he sees him, he is going to do what he threatened to do to him the other day and don’t let him see his face ever again or he’ll do what he said he would do.

    ·     That was the only time his uncle threatened him. He has not had any contact with his uncle since the family reunion week. He has not received any messages from anyone else from his uncle, although his cousin often mentions to him that his uncle is so angry with him. His uncle still lives at the same property at [Village 4].

15. The Tribunal asked the applicant at hearing why he fears returning to Tonga and what he thinks will happen to him if he returns there. He stated he fears for his life because of what happened with his uncle. As to what specifically he thinks will happen to him on return to Tonga, he stated that he’s not very sure and he can’t be very sure with his uncle that he’ll be safe as who knows he might do something to him and to injure him if he returns as they have not yet reconciled. He stated they haven’t talked or made peace and so he is fearful that if he goes back to Tonga, he might do something to him and that will affect his children and whole family.

16. In clarifying who specifically the applicant fears harm from on return to Tonga, the applicant stated it is only his uncle he fears harm from and he does not want his children to be exposed to that. He stated he was not harmed in Tonga on any other occasion other than at the family reunion, although did discuss in his oral evidence a past incident in 1998 in Tonga when he was living with friends and a group of boys came over and attacked the boys he was living with and he intervened and got bashed and woke up at hospital. In discussing with the applicant if anything else happened in relation to that incident he stated no, and that nothing else happened until the incident with his uncle. 

17. The applicant explained at hearing that he has a fear that his uncle has slandered him, including to his uncle’s children, and he is not sure if people in Tonga have been poisoned because people are not very happy and are disturbed from what happened before. He stated he is fearful his uncle may have spread false lies and he is not confident what his uncle and his uncle’s children may do to him or his family if he returns to Tonga. He stated there were no investigations that occurred in respect of his uncle’s conduct at the family reunion, and no police involvement and he never considered doing that and all he thought about was getting away from there.

18. The Tribunal confirmed the applicant’s address history with him in Tonga at hearing. It asked him if he lived anywhere else in Tonga or if he always lived with his wife in the family home once he moved to [Village 3]. He stated no, just at [Village 3].

19. The Tribunal discussed with the applicant the supporting documentation he has provided in relation to his claims, including the letters of support provided by [Mr A] of [Village 3], and Mr PF from Australia. The Tribunal asked the applicant who Mr MB is and how he knows that person. He stated he is the District Officer of [Village 3] and ever since he moved to [Village 3] he has been in that position and they have lived in the same village. The applicant confirmed Mr MB is related to his mother and that Mr MB was at the family gathering on the first day and the day of the incident with his uncle, although the applicant explained after Mr MB found out the applicant was not going to attend the remaining days he did not attend. The applicant confirmed Mr PF is a community leader in Australia and a church member.

20. The Tribunal raised with the applicant that the letters from Mr MB and Mr PF refer to a ‘recent’ culmination of a near tragic confrontation and a ‘recent incident’ where he faced verbal abuse and physical threats. The Tribunal asked the applicant if something had occurred recently, or if the references to recent events in the letters are in relation to the incident at the family reunion. The applicant stated he thinks they meant what happened to him at the reunion and that is what they are referring to. The Tribunal also raised with him that his supporting documentation refers to him remaining in Australia to distance himself from the immediate threat. The Tribunal outlined that the applicant has been in Australia now for well over eight years and put it to him whether the immediate threat from his uncle from the altercation at the family reunion would have passed duration that passage of time. In response the applicant stated maybe if there was some evidence that his uncle has talked to his wife and children, but his wife and children often meet his uncle on the way somewhere and they have stated he never talks to them so to him he has not seen any evidence that his uncle has cooled down or shown that he has put the issue past him. He stated who knows if he is still waiting for him to appear and then he’ll do what he said he will do.

21. The Tribunal raised its concern with the applicant if his uncle really wanted to harm him, wouldn’t his uncle have done so at the family reunion itself and pursued him them, or sought him out and harmed him in the months that followed the reunion when he remained in Tonga and before he came to Australia in late May 2016. The applicant responded that nobody knows what’s in his heart and what he is thinking about and he has not seen any evidence he has put it past that situation and to him he is not sure and does not know whether his uncle has calmed down and he has not said sorry so it is safer to keep his distance.

22. At hearing the Tribunal explored with the applicant his family’s circumstances in Tonga since his departure to Australia. He explained his wife and children remain living in Tonga at [Village 3]. He stated his mother has been living in [Country 1] for approximately two years with his youngest brother, who travelled to [Country 1] after his wife filled in the relevant paperwork. He stated his mother left Tonga for [Country 1] in about 2023, but she is now able to travel back to Tonga having obtained her [Country 1] residency and she will be returning to Tonga next month. When asked if his mother and wife are well and if they experienced any issues in Tonga since his departure, he stated everything is good with them but the only issue is that his mother lives in [Village 1] on the islands but his wife is on the mainland so they communicate by phone. His [sisters] remain living in Tonga, as well one brother. He has one brother living in Australia. Whilst the applicant mentioned in his oral evidence that his uncle did not speak to his wife and children in the community, and stated people are not happy and are disturbed from what happened before, he did not explain in any way that his family had experienced any issues since his departure from Tonga, including in the broader Tongan community, or provide any persuasive or detailed evidence that there was any continuing larger disunity in the Tongan community as a result of the incident with his uncle from 2016.

23. The Tribunal considered the applicant’s supporting documents in the context of his broader claims. The letters from Mr MB and Mr PF do not provide any context for their views as to why the community have grave concerns for the applicant’s return to Tonga or why his return would disrupt the peace and stability of the family and the community or lead to further escalation of the conflict. In discussing these letters with the applicant at hearing, the Tribunal raised with the applicant that it may not give much or any weight to the supporting letters as evidence of his past circumstances in Tonga or on return to Tonga as the people who wrote the documents do not appear to have provided objective independent accounts or observations of what transpired in Tonga, or of his circumstances on return to Tonga. It raised its concern that one of the authors is a family member of his who may have a vested interest in the applicant’s matter, and that Mr MB and Mr PF do not appear to have a detailed and current understanding of his circumstances given the references in the letters to ‘recent’ events, whereas the conflict the applicant experienced in Tonga took place over eight years ago.

24. The applicant stated in response that Mr MB was at the reunion and witnessed what happened and he probably did not return to the reunion as he understood what was going on and the seriousness of the matter and he found out the applicant was not returning. The Tribunal considered the applicant’s response but did not find it overcame its concerns as to the independent objective evidence the authors of the letters are able to provide of the applicant’s conflict with his uncle in Tonga, or of his circumstances on return to Tonga in the reasonably foreseeable future. The Tribunal accepts Mr MB is a relative of the applicant through his mother’s side and that Mr MB was present during the first two days of the family reunion and during the incident the applicant had with his uncle. For the reasons outlined above, the Tribunal places no weight on Mr MB and Mr PF’s letters as being indicative of the applicant’s circumstances on return to Tonga, the danger he faces on return to Tonga, or of the impact the conflict he had with his uncle had on his family or the broader community. 

1. The Tribunal discussed with the applicant at hearing his other supporting documentation, including his character references and support letters. It acknowledged whilst that documentation refers to his good character and personal attributes, and qualifications, it may not find that material relevant to a consideration of whether or not he qualifies for a protection visa. The Tribunal raised with the applicant that whilst his documentation refers to his qualities that would be an asset to the Australian community and his desire to remain in Australia, the Tribunal may find his removal from Australia to Tonga does not amount to serious or significant harm under the Act. The applicant responded that he understands and it was the only material he could provide and he wanted to be honest. The Tribunal did not find his response overcame its concern.

2. Although the Tribunal found the applicant to be a straight-forward and candid witness, and his evidence about the family reunion and conflict with his uncle to be detailed and heartfelt, there were some inconsistencies between his written and oral evidence that that Tribunal struggled to reconcile. The Tribunal discussed these inconsistencies with the applicant at hearing, explaining such inconsistencies may lead it to form the view that aspects of his evidence are not credible or reliable, which may lead it to affirm the Departmental delegate’s decision. It explained for example that in his written claims he stated in 2012 he contacted his uncle to ask if he could build a house at his town allotment at [Island 1] in Tonga and his uncle agreed to give him his land. It explained he outlined in those claims that he built a house and lived there with his wife and children, and then in 2014 his uncle was angry with his mother and evicted him from that land. The Tribunal explained at hearing however he had stated he only ever lived after the year 2000 in Tonga in [Village 3] with his wife and children until he came to Australia and he made no mention of building a house on his uncle’s land and living there.

3. In response to the Tribunal’s concern about the inconsistency in his evidence the applicant stated yes, what the Tribunal is saying is true, and the same uncle did evict him from his home at his place in [Island 1], but when discussing things at hearing he didn’t focus on that and only focussed on the family reunion and why they moved from [Island 1] to Tonga. It was not because they were evicted but because of his intentions for a better future for his children and that is why they moved from [Island 1]. He stated in discussing it, and thinking on it, it is probably deeper than that, and what happened is probably on a deeper level because of what had happened before. The Tribunal reiterated its concern that the applicant had stated on multiple occasions at hearing in his oral evidence that he lived in [Village 3] from the year 2000 onwards and that he moved there for better opportunities for his children, whereas his written claims provide a different account of living on his uncle’s land. The applicant stated he didn’t say anything about living on his uncle’s land as when he was evicted he didn’t fight with his uncle and so to him it didn’t have anything to do with the situation and altercation that happened.

4. The Tribunal considered the applicant’s responses although struggled to reconcile them with his repeated earlier oral evidence at hearing that he moved to [Village 3] in the year 2000 for the better future of his children and that he did not live anywhere else in Tonga after that time. The Tribunal finds if the applicant did live in [Island 1] on his uncle’s land, especially in the years prior to the family reunion and for a significant period, that this is information he would have provided the Tribunal when giving his residential history, discussing where he and his family moved to and at what times, and in relaying the historical conflict with his uncle.

5. The Tribunal also raised with the applicant at hearing the inconsistency in his evidence as to the circumstances of the conflict that took place with his uncle at the family reunion itself. It explained in his written claims he has indicated at the family reunion he had an altercation with his uncle over the fire to roast the pigs and his uncle threatened to shoot him and his mother dragged him away and when he left Tonga his uncle was still sending him messages through relatives that if he ever met him in person he would not hesitate to harm him simply because he had dared to stand up to him in front of family members during the reunion. The Tribunal explained at hearing he had instead recounted an altercation with his uncle at the family reunion over his clothing and about putting him in the fire. It explained he had stated in his oral evidence that his uncle came to visit him at his property at the end of the reunion and told his wife a message and he had otherwise heard from his cousins that his uncle is angry with him, which is a different account of contact with his uncle to what is stated in his written claims.

6. The applicant responded by stating what the Tribunal had outlined is true, and when he saw his migration agent, he was asked questions and his agent wrote them down and perhaps there are slight differences in the answers in what has been written down. He stated there is nothing else he can say. The Tribunal considered his response and in the context of his overall evidence about the family reunion and the consistency of his evidence that an altercation occurred with his uncle at that event in relation to the fire and his ability to speak to the family reunion in detail, including the details of that week-long event, and the general nature of the disagreement with his uncle involving the fire, it found his response as to why there may be variances between his written and oral evidence as to the altercation itself to be persuasive.   

7. The Tribunal considered the applicant’s evidence throughout the process, his supporting documentation, and his responses to its concerns. The Tribunal accepts the applicant attended a family reunion in Tonga where he had a conflict with his uncle. Whilst his written claims refer to this occurring in December 2015 and he stated at hearing it occurred in March 2016 before Easter, the Tribunal accepts given the passage of time it would be difficult for the applicant to recall specific dates of certain events. The Tribunal is prepared to accept the family reunion occurred in approximately March 2016 and before the 2016 Easter holidays. The Tribunal accepts on the second day of the family reunion the applicant had a heated exchange with his maternal uncle where his uncle verbally threatened to throw him in a fire, to grab a gun and shoot him and put him in a fire, and that his uncle went into his house and came back out of the house carrying a gun and a knife. The Tribunal accepts the applicant left the family reunion without any physical altercation occurring between him and his uncle.

8. The Tribunal does not accept the applicant lived for a period of time on his uncle’s land, that he built a house in 2012 on his uncle’s property, and that in 2014 his uncle dismantled his house and kicked the applicant out. The Tribunal has been unable to reconcile the applicant’s evidence at hearing that he did not live elsewhere in Tonga after the year 2000 other than in [Village 3] with his claims he lived on his uncle’s land between 2012 and 2014. The Tribunal does not accept when he left Tonga in May 2016 that his uncle was still sending him messages through relatives that if he ever met him in person, he would not hesitate to harm him. The Tribunal prefers his detailed oral evidence given at hearing as to what contact he had with his uncle and accepts the applicant’s uncle attended his home address approximately three days after the altercation at the family reunion where his uncle told his wife if he ever sees the applicant, he is going to do what he threatened to do to him. The Tribunal accepts the applicant did not see his uncle again whilst he was in Tonga, he has not heard from him since he saw him at the family reunion, and that he had heard from his cousins that his uncle is angry with him.

9. The Tribunal raised its concern with the applicant at hearing about the delay in the lodgement of his protection visa application after his arrival in Australia. It outlined he arrived in Australia [in] May 2016 according to his protection visa application, yet he did not claim protection in Australia until 10 November 2019, several years later. The Tribunal raised with him that if the threat of harm from his uncle was as real and ongoing as he has claimed, and he genuinely fears being harmed if he returns to Tonga by his uncle, it is concerned that it took him so long to lodge his protection visa application in Australia. The Tribunal explained given the delay, it might find that his claimed fear of harm is not genuine and he has fabricated or embellished the incidents of harm he has claimed and that he does not face a real chance of serious harm or a real risk of significant harm on return to Tonga.  

10. The applicant stated in response that when he arrived in Australia he was relieved and sort of safe and he had to settle down and find accommodation and try to get financial support and work and pay for his accommodation. He stated he didn’t have funds to proceed with an application and had a language barrier and being new to the country it took him a while to settle down and he needed money to start going in that pathway. The Tribunal considered the applicant’s response and did not find it persuasive or that it overcame the Tribunal’s concerns where the applicant claimed to fear for his life on departure from Tonga and where he then delayed seeking protection in Australia for a period of more than three years.

11. The Tribunal also raised with the applicant its concern that it may find on the evidence before it that he does not face a real chance of serious harm or a real risk of significant harm from his uncle or his uncle’s family or from any other person on return to Tonga in the reasonably foreseeable future. The applicant stated in response that he does agree and understand but to him personally he does not know what other people think about and you can’t tell and in his case there is no evidence of his uncle and what he is going to do or what he can do or his children and he wouldn’t risk going back to Tonga and losing his life. The Tribunal considered his response and found it to be speculative and that it did not overcome the Tribunal’s concerns.

12. The Tribunal acknowledged the past conflict with and threats from his uncle and that they may have been distressing to him, and that he does not want to depart Australia. It raised with him it may not find the emotional impact or memories of the past threats on him, or any ongoing tension with his uncle on return to Tonga, amounts to serious or significant harm under the Act. In responding to the Tribunal’s concern the applicant stated the Tribunal is right, but to him what happened impacted him and if it didn’t impact him, he would love to go back as he has his children and he loves them very much. He stated his eldest daughter is [Age] and she has said not to risk what might happen to him. The Tribunal did not find the applicant’s response overcame its concern.

    Claims in respect of riots and disturbances and his lack of anti-government protest action in Tonga

13. At hearing the applicant explained he was not a member of any political party in Tonga and he was not involved in any protest action. He stated political riots and disturbances in Tonga play a part in his fear on return to Tonga. In discussing this in more detail with the applicant he stated trouble goes on and on in the government in Tonga and there was a riot and the people who initiated the riot wanted everyone to be with them, and because he did not join with them, they may have a bad attitude about him and that he did not join them and it is not safe in Tonga for anyone who did not support them and what they did in rioting in Tonga.

14. The Tribunal asked the applicant about the riots. He explained the riots happened in 2016 before he came to Australia and the democratic group wanted to burn the city of Nuku’alofa and they tore everything down in the city and were messing with everything. When asked why he would be blamed for not participating in any riot he stated because that year they wanted to overturn the government and be ruled by the democratic people and be out with the king and the current system and owing to his religious beliefs he is not allowed to participate in any political campaigns or issues. He outlined at hearing that he was a member of [Church] in Tonga. He stated he abided by the belief of the church but those that were doing the disturbances in Tonga wanted everyone in Tonga to be with them, so it is not safe for those that were not with them in their political party.

15. The Tribunal struggled to find contemporaneous country information relating to riots in Nuku’alofa or the planned burning of the city in 2016. The Tribunal accepts there were large scale riots in 2006 in Nuku’alofa leading to a state of emergency being called after eight people were killed in pro-democracy riots in the capital[1]. The applicant stated repeatedly at hearing that the riots to which he is referring to occurred in 2016 before he departed Tonga for Australia. The Tribunal accepts on the basis of the newspaper reports and articles provided by the applicant to the Department and reports before the Tribunal that there were political tensions in Tonga in 2016, as well as issues involving government corruption, bribery, the use of public funds, and protest and petitions occurring in the community in respect of government actions[2]. The Tribunal is prepared to accept protests and riots occurred in 2016 by political parties in response to government actions and that the applicant did not participate in any riots or protest action.

    [1] ‘State of emergency after Tongan riots’, The Guardian, 17 November 2006; ‘Tongan pro-democracy leaders hail riots as victory’, ABC News, 17 November 2006; Australian Government, AusAID, Annual program performance report: Tonga 2008-09, January 2010, 5.

    [2] Freedom House, Freedom in the World 2016 – Tonga, 29 August 2016; United States Department of State, 2016 Country Reports on Human Rights Practices: Tonga.

16. The Tribunal raised country information with the applicant at hearing that provides the Tongan Constitution and law provides citizens in Tonga with the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage[3]. It explained the country held its most recent parliamentary election in November 2021, with international observers deeming the election to be generally free and fair[4]. It outlined the constitution protects freedom of assembly, and demonstrations in recent years have been reported to generally have proceeded peacefully[5].

    [3] United States Department of State, 2023 Country Reports on Human Rights Practices: Tonga.

    [4] United States Department of State 2023 Country Reports on Human Rights Practices: Tonga.

    [5] Freedom House, Freedom in the World 2023 – Tonga.

17. The Tribunal explained the country information before it may lead it to conclude the political situation in Tonga is stable, the constitution provides for choice in government, and there is freedom to express political opinion. It explained considering this information and his political profile, it may find he does not face a real chance of serious harm or a real risk of significant harm on return to Tonga in the reasonably foreseeable future in respect of his decision not to be involved in past riots or demonstrations, or for reason of the continued expression of his political views and opinions. The applicant stated in response that he cannot deny the constitution is settled and intact but what happened is the people and not the government and he did witness what happened in the riot and the people who didn’t support the democrat party to overturn the government, even their houses were burned at that time. The Tribunal did not find the applicant’s response overcame its concerns. The Tribunal does not accept the applicant’s home was burned down in relation to any riots in Tonga or that he was harmed in respect of his non-participation in any riots in Tonga. At hearing the applicant stated he was not harmed in Tonga for any reason other than the isolated attack at his home in 1998 and in relation to the family reunion incident involving his uncle.

    Does the applicant satisfy the refugee criterion for protection?

18. The applicant claims if he returns to Tonga, he will be harmed by his uncle and his uncle’s children in relation to the past conflict he had in Tonga with his uncle. He also raised concerns that he will be harmed as someone who did not participate in anti-government protest action in 2016. At hearing he resiled from his written claims in his initial protection visa application and confirmed he had not participated in any petitions or protests in Tonga and stated he was not harmed or threatened by the police.   

19. The Tribunal has not accepted the applicant protested or petitioned against the government in Tonga at any time, or that he or his family were bashed, pushed around, threatened or jailed in respect of any protest or petition action at any time.

20. The Tribunal has accepted the applicant attended a family reunion in Tonga in approximately March 2016 where he had a conflict with his uncle on the second day of the family reunion. The Tribunal has accepted there was a heated verbal exchange between the applicant and his uncle where his uncle verbally threatened to throw him in a fire, to grab a gun and shoot him and put him in a fire, and that his uncle went into his house and came back out of the house carrying a gun and a knife. The Tribunal has accepted the applicant left the family reunion without any physical altercation occurring with his uncle.

21. The Tribunal has not accepted the applicant lived for a period of time on his uncle’s land, that he built a house in 2012 on his uncle’s property, or that in 2014 his uncle dismantled his house and kicked the applicant out. The Tribunal has not accepted when the applicant left Tonga in May 2016 that his uncle was still sending him messages through relatives that if he ever met him in person, he would not hesitate to harm him. The Tribunal has accepted the applicant’s uncle attended his home address approximately three days after the incident at the family reunion where his uncle told his wife if he ever sees the applicant, he is going to do what he threatened to do to him. The Tribunal has accepted the applicant did not see his uncle again whilst he was in Tonga, he has not heard from him since he saw him at the family reunion, and that he had heard from his cousins that his uncle is angry with him.

22. The Tribunal has accepted protests and riots occurred in Tonga in 2016 by political parties in response to government actions and that the applicant did not participate in any riots or protest action. The Tribunal has not accepted the applicant’s home was burned down in relation to any riots in Tonga or that he was harmed in respect of his non-participation in any riots in Tonga.

23. The Tribunal has considered the findings above, and having regard to the findings above, its assessment of the applicant’s future conduct in Tonga and relevant country information as raised above and discussed with the applicant at hearing, the Tribunal is not satisfied there is a real chance that he will suffer serious harm upon return to Tonga in the reasonably foreseeable future.

24. To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.

1. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.

2. The Tribunal has found the applicant did not participate in any protests or petitions whilst in Tonga and that he was not threatened or harmed by the police for any reason, including in respect of his political views. It finds he was not of adverse interest to the authorities or police on departure from Tonga for any reason. At hearing the applicant raised concerns that he would be harmed on return to Tonga on account of his lack of protest action, namely that he would be harmed by political agitators and anti-government rioters that wanted everyone in Tonga to riot and protest against the government and as someone who did not participate in riots, he would be harmed. The Tribunal accepts the applicant did not participate in any protests or riots, that he is a member of [Church], and that his religious beliefs prevent him from undertaking any rioting or protest action.

3. Whilst the applicant has raised concerns that he will be harmed on return to Tonga for having not participated in riot/protest action in Tonga in 2016, he was not harmed on any occasion by anyone whilst in Tonga in 2016 for having not participated in any anti-government protests or riots or actions. He was not involved in politics in Tonga in any way. The Tribunal finds the applicant did not have a political profile whilst in Tonga such that he would be of interest to or known to political agitators for any reason. It has found that his house was not damaged in any way by rioters and he was not targeted for any reason in respect of any riots or protests. The country information as raised with the applicant at hearing indicates Tonga is in a state of political stability and that demonstrations in recent years have generally proceeded peacefully. The Tribunal finds the applicant will be returning to a political climate in which he has the freedom to express his political opinion. It finds he will be able to abstain from participating in political action or protests for reason of his political views and religious beliefs. There is no persuasive evidence before the Tribunal that the applicant will be targeted by a political party or anyone else for his prior lack of protest action or on account of the continued expression of his political views. Considering the above, the Tribunal finds there is no real chance the applicant will be harmed on return to Tonga in the reasonably foreseeable future by the police, the authorities, political agitators or protestors, in connection to past riots or protests, or on account of the expression of his political views.

4. The Tribunal considered the applicant’s claim he will be harmed by his uncle or his uncle’s children on return to Tonga. The Tribunal accepts the applicant had a verbal altercation with his uncle at the family reunion in March 2016 and that his uncle threatened to get a gun and to shoot him and put him in the fire. The Tribunal accepts the applicant’s uncle came out of his house with a gun and a knife. The Tribunal accepts the altercation with his uncle, the threats made against him, and the ongoing conflict with his uncle is distressing for the applicant. The Tribunal does not find on the evidence before it that the applicant’s uncle had any intention of carrying out his threats on the applicant at or after the family reunion, or that he has any intention of carrying them out in the reasonably foreseeable future. The applicant was able to depart the family reunion without issue and drive back to his family home, some twenty minutes away from his uncle’s property. The applicant’s uncle did not seek him out on his departure from the family reunion, immediately following the family reunion, and other than the single occasion he came to visit his family home three days after the family reunion where he issued his wife with a threat that he would harm him if he ever saw him, he did not seek to find or harm the applicant in any way despite living a twenty minute drive away. The Tribunal finds the applicant’s uncle had ample opportunity to find and harm the applicant in Tonga if he intended to, including in the months the applicant remained living in in his property in [Village 3] before he departed Tonga for Australia. In these circumstance, the Tribunal finds the applicant’s uncle had and has no intention to carry out his verbal threats against the applicant and seek to harm him.

5. Since arriving in Australia the applicant has not heard from his uncle. It has been over eight years since the incident at the family reunion occurred. His family have been able to remain in Tonga without incident. Whilst the applicant’s uncle has not spoken to his immediate family in Tonga, he has not made any attempt to harm them or issued any further threats against the applicant via his family. The applicant has heard through a cousin that his uncle is angry at him, although indicated at hearing that no specific threats or messages were passed on to him from his uncle via other family members. There is no persuasive evidence before the Tribunal that there is any imminent threat against the applicant on return to Tonga or that the community is divided or in conflict owing to the altercation that occurred between him and his uncle at the family reunion in 2016.

6. When the Tribunal raised with the applicant at hearing that it may find on the evidence before it that he does not face a real chance of serous harm on return to Tonga from his uncle or any other person, his response was speculative, with him stating that he agreed with the Tribunal, but he doesn’t know what other people think and he can’t tell in his case given there is no evidence from his uncle about what he or his children are going to do. When the Tribunal raised with him if his uncle really wanted to harm him, why he didn’t do so at the family reunion or seek him out when he remained in Tonga before coming to Australia in May 2016, he similarity provided a speculative answer that nobody knows what is in his uncle’s heart and what he is thinking. The applicant was unable to persuasively outline why after eight years his uncle would seek to harm him owing to the verbal altercation occurring at the family reunion, particularly in circumstances where his uncle did not harm him at the family reunion itself, following it in Tonga, they have not maintained ongoing contact, and no further issues have arisen between the applicant and his uncle and his family. Given these factors, the Tribunal finds there is no real chance the applicant’s uncle or his uncle’s children will harm the applicant or continue to issue him with threats on return to Tonga in the reasonably foreseeable future.

7. The Tribunal has accepted the applicant’s uncle made threats towards him in Tonga. It accepts that the threats have caused the applicant distress. It accepts the applicant’s uncle has not spoken to his family in Tonga and there may be some tension with his uncle and a degree of family isolation. It also accepts the applicant does not want to return to Tonga and that he wishes to remain in Australia. It accepts he has provided documentary evidence speaking to his character and personal attributes. Whilst the Tribunal acknowledges the distress the applicant has experienced resulting from the past threats from his uncle, and that there may be a level of ongoing family tension and family isolation with his uncle on his return to Tonga in the reasonably foreseeable future such that his uncle does not speak or interact with him or his family, as raised with the applicant at hearing the Tribunal finds the emotional impact of his uncle’s past threats on him, memories of the family reunion in Tonga, a level of ongoing tension with his uncle and lack of family unity in Tonga, and his forced departure from Australia to Tonga despite his desire to remain in Australia where he has established himself in the community do not amount to serious harm under s 5J(4)(b) of the Act. 

8. The applicant did not claim, and there is nothing in the material to suggest, that he fears persecution for any other reason in Tonga. When asked if there was any other reason or basis on which he fears harm on return to Tonga he stated no and only what he had explained. He raised at hearing the incident of harm that occurred in 1998 and explained he did not experience any further issues in connection to it. As raised with the applicant at hearing, the Tribunal finds the applicant does not face a real chance of serious harm on return to Tonga in the reasonably foreseeable future from any person arising out of the 1998 attack on him at his home.

9. For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicant returns to Tonga now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, the applicant does not meet the definition of refugee in s 5H(1) and does not satisfy the criterion set out in s 36(2)(a).

   Does the applicant satisfy the complementary protection criterion for protection?

10. 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).

11. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Tonga.

12. For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience harm from his uncle or his uncle’s children, the police, the authorities, political agitators or protesters, in connection to past riots or protests, in connection to the past attack on him in 1998, or for reason of the expression of his political views if he returns to Tonga in the reasonably foreseeable future. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[6]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicant does not face a real risk of significant harm for any reason.

    [6] MIAC v SZQRB [2013] FCAFC 33.

13. The Tribunal accepts the applicant does not want to return to Tonga and would prefer to remain in Australia where he has formed community connections. It accepts there may be a level of ongoing tension and social isolation with his uncle on return to Tonga in the reasonably foreseeable future and that he may not have family cohesion with his uncle and that his uncle may not speak to him or his family. It accepts he has found the altercation and conflict with his uncle and past threats from his uncle distressing. Whilst the Tribunal appreciates the applicant may have bad memories of Tonga, that he experienced distress as a result of the past threats issued against him, that a degree of tension may continue with his uncle such that his family is not contacted by his uncle or spoken to by him, and that he would prefer to remain in Australia, the Tribunal finds these circumstances and concerns do not come within the exhaustive definition of significant harm in s 36(2A).

14. The Tribunal finds the applicant’s concerns and circumstances do not result in him being arbitrarily deprived of his life, the death penalty being carried out on him, or him being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Cruel or inhuman treatment or punishment and degrading treatment or punishment are both defined in s 5(1) of the Act. To amount to cruel or inhuman treatment or punishment, an act or omission must cause either ‘pain or suffering’ or ‘severe pain or suffering’, intentionally inflicted on a person, which can be either physical or mental. The definition of degrading treatment or punishment in s 5(1) is specific as to the level of humiliation which must be evoked by the particular act or omission and requires extreme humiliation which is unreasonable. Whilst the Tribunal accepts the applicant may experience some tension with his uncle and his uncle’s children and that his uncle and his family may not speak to him or his family, resulting in a degree of social isolation and family disunity, the Tribunal considers this conduct does not amount in his circumstances and considering his overall other family support networks in Tonga to cruel or inhuman treatment or punishment or degrading treatment or punishment, or any of the other instances of significant harm as defined in s 36(2A).

15. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga, there is a real risk that he will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to Tonga that he will be arbitrarily deprived of his life or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

16. The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Conclusion

17. 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).

18. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

19. 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 criteria in s 36(2).

    DECISION

20. The Tribunal affirms the decision under review.

    Date of hearing: 7 March 2025

    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.

    …