2504141 (Refugee)
[2025] ARTA 1576
•2 June 2025
2504141 (REFUGEE) [2025] ARTA 1576 (2 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2504141
Tribunal:General Member R Johnston
Date:2 June 2025
Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.
Statement made on 02 June 2025 at 11:04am
CATCHWORDS
REFUGEE – protection visa – Tonga – particular social group – victim of family violence – woman without family support – mother and daughter relationship – fear of killing – physical assault – Complementary protection – employment – accommodation – internal relocation – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
SZLWE v MIAC [2008] FCA 1343
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 February 2025 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Tonga, applied for the visa on 16 December 2024. 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.
On 6 February 2025 the applicant lodged an application for review of the delegate’s refusal decision with the former Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (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.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant lodged a protection visa application on 16 December 2024. In that application she provided the following:
· She was born in [specified year] in Tongatapu, Tonga. She has never married.
· Her father, mother, and [siblings] reside in Tonga. She has an aunt in Australia.
· She speaks, reads, and writes Tongan and English. She is a Christian.
· She completed primary and high school in Tonga between [specified years]. She studied in New Zealand between [specified years] in a [Course 1] although did not complete that course. She studied a vocational course in New Zealand between [specified years].
· She was employed between January 2022 and December 2023 as [an occupation 1] for the Tongan Government. [Between specified years] she was in school and university and her close relatives including her grandparents and aunts and uncles supported her.
· She has been unemployed across January 2024 to December 2024 and has undertaken volunteer youth work and activities at her [Christian] church. Members of the church and her close relatives have supported her.
The applicant makes the following claims in her protection visa application form:
· The main reason for her to come to Australia is seeking solace and a peaceful home and family. In Tonga she was exposed to ongoing prosecution by her own biological mother. She abused her almost every day when she was in Tonga. She has always believed that her mother hates her to the very core of her being. A few times she almost tried to kill her. She has constantly harassed and her mother hurt her physically. She could not cope with her abusive behaviour. She decided to come to Australia to find peace in her aunt’s house and [family].
· In October 2023 her grandfather died. She was living temporarily at her [Relative A’s] house. At the funeral of her grandfather her mother bashed her. Her ear was bleeding and was hurt and she almost became death. Her aunt came to Tonga to attend the funeral. She saw she had been physically hurt by her mother and decided to sponsor her to come to Australia. She started coming to Australia in 2023 as a visitor.
· Her mother had a habit of beating her with whatever material she had at the time. She harassed her almost every day when she was living in Tonga. She had to live with her parents. Her mother threatened to kill her with a knife but she could not because one of her brothers was present at the time. He saw her mother coming towards her with a knife and he provoked her or else she would have stabbed her from her back.
· Her mother gave birth to her as an illegitimate child. Her father’s family did not want her father to marry her mother. After she was born her father’s side of the family such as his sisters (her aunts) raised her with her father’s biological parents. Later on her parents got married officially and since then her mother never said a loving word to her. She hates her and could not care less if she lived or died. She believes her mother believes she loves her father’s siblings and parents more than her. Her mother never had a mother daughter relationship with her and her mother has a mental problem.
· It is extremely uncommon for mothers in Tonga to hate their children. She feels shameful to go to the police to lodge a complaint about her mother because she has nowhere else to live in Tonga and only her parent’s house. Her aunt in Sydney [raised] her with her siblings and her parents. She seeks their consent, support, and help. She sponsored her to visit her in Australia from time to time as a breakthrough for her personally from her biological mother who is living in Tonga with her father.
· She spent most of the last year in her biological aunt’s house in Sydney. She was raised by her after her birth. She feels loved in Sydney. She didn’t know she could apply for a protection visa. If she knew that she could apply for a protection visa as soon as she arrived in Australia she would have already lodged her application.
· She cannot find somewhere else to move in Tonga as Tonga is a very tiny country. Even though she is over eighteen years of age, under Tongan customs she is still under her mother’s authority. Her mother could find her anywhere in Tonga. She has to do whatever her mother wants her to do. She has no land in Tonga and it is not safe for her to move around as she would be thought of as a rebellious female to her parents.
· When she returned from Australia to Tonga she used her multiple visitor visa and stayed at [an agency 1]. She has been told she cannot return to [this agency 1] [details deleted]. She would need to return to her parent’s house but her mother will continue to bash her and beat her and persecute her as she hates her. She is fearful of her. She fears she will always harass and abuse her physically. She believes her mother will murder her. She has nowhere else to return to in Tonga.
· She believes on return to Tonga her biological mother will mistreat her. She has caused her emotional and physical harm. She believes she will murder her because she is against her father’s siblings and parents. She thinks hurting her is also hurting her father’s side of the family. Her mother doesn’t want her to talk to her father about anything. She wants her to talk to her and explain whatever she wants her father to do for her and she is the only one to talk to her father about what she wants from him. She wants to be the middle person between her father and herself. He may not be her real father.
· The police will not be able to protect her in Tonga from her mother. There are no refugee accommodations in Tonga. Even if the police talk to her mother and convince her that what she has done is wrong, the police cannot protect her and they will still tell her to return to her mother.
· She has no land in Tonga. She is a female and females cannot freely move around without the protection of their parents or very close relatives. It is unsafe in Tonga for females if they live alone as women are not perceived respectfully if they do so unless they are married.
In a statement provided by the applicant to the Department she states (in summary):
· She is the eldest of [number] children from her biological parents. She is the only daughter. Both her parents had first marriages and children from their former marriages and they had her before they were officially married to each other.
· She was born in Tongatapu. She was told after being born she was sent to an outer island in Tonga to her dads’ parents and sisters to be raised and cared for. She was raised by her grandparents and aunts, especially her aunt who currently resides in Sydney, [Aunt A]. She was brought up in a loving and caring environment with Christian beliefs and values. She was loved, was the only grandchild living there, and had a humble and poor upbringing. She was not legally adopted by her aunt but was known as an adopted child.
· When she was five her biological parents came to the island to take her back. Her grandparents and aunties did not take this well which resulted in disagreements, conflicts, and great sadness. It was a fearful time for her. Her biological mother had a loud and fearful voice. She was always shouting and swearing at her.
· Her parents had a [company] and most of the time her father was away busy with work so she spent little time with him. As the eldest she was tasked with chores and taking care of the rest of her siblings when they were born. At the end of year school breaks she was sent back to live with her aunt and grandparents.
· Her mother had a different way of raising her and would shout, swear, and hit her every opportunity she got. She did everything expected of her to keep her mother happy. She would do chores and laundry. If she rested her mother would shout and swear at her to get up as there were always things to be done. She would get tired but was not allowed to sleep in her room and would be hit so she’d go the bathroom or toilet and lock the door. Her mother would get her to go places with her so she could beat her on the road so no one would know. In Tongan customs it is up to her mother how she raises her and if she physically abuses her or verbally abuses her and no one has the right to intervene and stop her from doing so. She cried herself to sleep to get away from that life.
· She was happiest with [Aunt A]. When [Aunt A] migrated to New Zealand she would go to New Zealand on her school breaks and during Christmas and holiday season. It irritated her mother to see how much happier she was with her aunts and grandparents. She tried to earn her mother’s love with presents and the more she tried to please her mother the more she made her feel like she was not good enough.
· She was not allowed to talk to her father without her mother knowing. Her mother would talk to her father and then communicate back to her. She would be accused of being cunning or get sworn at if she spoke with her father. She was beaten when in high school. On a Saturday she had done the washing and laundry and was so tired at eight in the evening and had a shower and went to sleep. She woke to her mother shouting for her about doing the shopping with her. She suggested her brothers go with her mother and then her mother kicked her thigh and started beating her to get in the car with her. She cried and got in the back of the car. She slapped her before they went into the shops.
· She completed [grade] of high school in [year] and received a scholarship to study a [Course 1] sponsored by the Australian government at a university in New Zealand. Her mother wanted to know the login to her internet bank account for her allowance. She would call or email her scolding and lecturing her about buying coffee at the university library or that she was not happy with how she dressed.
· During school break she stated she wanted to visit [Aunt A] in New Zealand. In New Zealand her mother did not want to speak to her and started telling stores that they did not know she was going to New Zealand and that she was going to meet a guy instead. This hurt her deeply as she had tried to do things the right way, always asked permission, and her mother made up stories. Her mother contacted distant relatives claiming she had been to New Zealand and was pregnant. This impacted her mentally. She was embarrassed of what the other students would be saying of her and cried and stayed in her dormitory and could not attend classes. She was suicidal and with the pressure was failing her courses. She could not avoid her mother who was always finding a way to create something to be mad about. [Aunt A] taught her suicide is a sin and urged her to get counselling. She missed her final exams and her scholarship was cancelled. Her mother was hospitalised with [a condition] and she returned home to look after her mother.
· The problems continued when she returned home to Tonga. She took care of her mother and enrolled in a Tongan university. Her other stated she would never be like her [older children] who were graduates. She started working at her parent’s [company] as a secretary with another lady in the office, Ms ME. Ms ME would tell her that her mother would comment that she was dressed like a whore, high-headed. She was upset with these stories and approached her father to stop the matter but that made things worse as her mother insinuated there was an affair of a kind between herself and her father. She questioned if her father was her real father.
· [Aunt A] has always supported her over the years, sending money from Australia to Tonga.
· Her mother blamed her for her brothers misbehaving. She was beaten from talking back to her mother about her brothers. Her mother would tell her she would die a blatant death for not doing as she wishes.
· In late 2022 her father told her it would be best to look for another job. She applied for a job and became [an occupation 1]. Her mother mocked her saying she was a secretary. She walked around making loud noises with chairs, plates, or pots and swearing. If she asked her mother what was wrong she would go off at her and call her high-headed, the worst of the worst, and beat her. Her brothers would jump in and hold her off. Her mother spread rumours about her at the office and at church and when she would approach her mother about it she would be sworn at and hit.
· If her mother made dinner it would just be for herself and her father and leftovers would go to her brothers. She locked herself in her room and messaged her brothers when her mother had left to come eat or talk with her brothers. When she got Covid-19 and had to isolate her mother made dinner for everyone and not her and did not speak to her.
· One she was eating with her brother and her mother walked up behind her with a knife. Her brother said ‘hey what’s wrong?’ and she turned and saw her mother outside with a knife and her brother said when her mother walked past her she swung the knife behind her as if to hit her. She went to her room to lock the door. When it was too unsafe for her to stay home she would go to Ms ME’s house as she understood the situation.
· Ms ME told her that her mother had confided in her that she hated her as she was named after her dad’s mum and her grandmother did not approve of her marrying her dad. She was also treated that way as her mother saw how her dad’s family loved her and that was her way of getting back at them.
· If she stayed at Ms ME’s house, her mother would get a friend to come and convince her to come home as leaving home was not good in the public eye and would ruin her reputation. She could not go to the police because she was still her mother. In Tongan culture they are taught to respect their parents and going against that would mean she was cold-hearted, cruel and unloving. She didn’t think anyone would believe her.
· In 2023 her grandfather that had helped raise her fell ill. She moved to her [Relative B’s] house to take care of him. When she returned home the first time her mother threw a knife at her and it missed. She threw fish from the freezer in her direction. She threatened to come to her [Relative A’s] house and beat her and threaten her. She threatened to go to the police and remove her name with swear words instead. She tried avoiding her as best she could.
· In October 2023 her grandfather passed away. The families came together for a funeral. One evening after prayer service her mother beat her head with aluminium foil in front of [Aunt A], her other aunts, and family. Her right ear was blocked, aching and discharging blood and pus. Her mother told her aunts she didn’t like her so she was always going to beat her whatever chance she got. [Aunt A] decided she would not be safe in Tonga and now that her grandfather had passed away she had nowhere to go.
· Since getting her visitor visa she has lived with [Aunt A] and her husband in Sydney. They are [involved with] a Christian Church in Sydney. She has assisted the church’s prayer and worship team. She learnt the piano to assist at church. She has helped out at youth services and has taught the gospel, all without payment.
· She also helped care for a Tongan lady who is an Australian citizen and widow who lives with a disabled son. She does this without payment.
· She has ensured before her three month visitor period is finished she has booked flights back to Tonga so as to not breach her visa conditions. She is grateful for the visas she got as it was her way to get away and be safe from her mother.
· She does not feel safe as the longer she was in Tonga her mother found out she was there and looked for her, messaged her friends, and asked for her whereabouts. She was unable to go places in fear her mother might see her and what she would do to her. She was anxious and scared and worried that every vehicle that went past would be her mother. She didn’t want to go to the police as she didn’t want to initiate and trigger her into doing something worse to her. She didn’t want to be known as a heartless daughter who took legal action against her mother. Her mother has connections everywhere and can pull strings.
· She is unable to return to Tonga. She has nowhere to go. Her mother will find her and she fears what she will do to her the next time she sees her as she has talked about killing and taking her life.
The applicant provided the Department with a statement from her aunt, [Aunt A]. In that document she provides (in summary):
· The applicant is the daughter of her brother and is named after their late mother. She cared for the applicant after her birth. She was not married at that time and raised the applicant as her own.
· At five years of age the applicant’s father and mother came to take her back to Tonga from the island. They were heartbroken at the applicant leaving their care. She moved herself with her mother to the mainland when the applicant started kindergarten to care for her as her parents were busy with their company. The applicant’s mother beat, swore, and shouted at the applicant in front of them. When her own mother tried to stop the applicant’s mother from beating her it angered her more. The applicant’s mother hurt her to hurt their family.
· She returned with her mother to the islands. The applicant visited on holidays. The applicant spoke of being abused physically, mentally, and emotionally. She had hand marks and bruises on her face from being slapped. She once had a bruise on her chest from being pinched with long nails.
· The applicant visited her in New Zealand once she moved there. It’s common in Tonga for people to abuse children and the police and government do not take it seriously.
· Over the years she has provided financial support and emotional support to the applicant. The applicant called her at one point thinking of suicide. There were ongoing problems when she was studying in New Zealand. She helped calm her through the word of God and got her to counselling.
· The applicant returned to Tonga and the conflict with her mother became worse. Her father took her mother’s side. Her mother shouted, swore, slammed furniture and beat the applicant. Her brothers fortunately protected and cared for her but they were not always at her side. Her mother was telling others she would kill the applicant.
· Her mother beat her so badly once that her father asked her to go stay at his [brother’s] house to be away from her mother. Her mother didn’t let her go as that would tarnish her reputation. She paid for a ticket for the applicant to get out of Tonga for a break without her mother knowing. Her brothers dropped her at the airport. Her mother found out and tried to reach the applicant and said she would rather go to the airport and stab the applicant to death and go to jail than let her leave. She went to New Zealand on her New Zealand visa and then returned to Tonga.
· In December 2022 her father was ill so she went to Tonga. The applicant’s mother said she was threatening to do something hurtful to the applicant and for them to not be surprised if the applicant is killed.
· In 2023 the applicant took care of her grandfather in Tonga. The applicant’s mother threw a knife at her and it missed and hit a pole and sprang onto her own youngest son who was nearby. He was not injured.
· In October 2023 her father passed away and she went to Tonga for the funeral. Her sisters from New Zealand and some of the families were sitting after prayer and the applicant was cleaning up. The applicant’s mother started swearing at the applicant and beat her head and ears with aluminium foil. To this day the applicant can’t hear well and has problems with discharged in that ear. The applicant stood crying as she was beaten. She got up and stopped the applicant’s mother, who said she would beat the applicant every time she saw her. She decided to bring the applicant to Australia as her mother’s actions had got worse over the years.
· She got the applicant out of the country without her mother’s knowledge. The applicant has stayed with her whilst in Australia and has assisted at home, in the church, and with youth and Sunday school. She also helps Tongan community members. She organises travel and accommodation for church mini-conferences.
· When returning to Tonga she stayed at the [agency 1] away from family and friends that would result in her mother knowing she had returned. The applicant is always anxious and worried when her mother may find out she is in Tonga. When talking about her mother her hands get cold, she loses her appetite, and she has no energy.
The applicant also provided the Department with the following materials:
· Payslips for her aunt [Aunt A] in Australia.
· Identity documents for herself and [Aunt A].
· Photographs of the applicant playing the piano, singing in the church choir, and at church.
· A letter dated 20 December 2024 from the Pastor of the applicant’s church in [Suburb 1] Australia, [Pastor A]. In that letter it is stated the Pastor has known the applicant for over twenty years, including in Tonga and whilst she has been in Australia. It details the applicant’s attributes and the assistance she has provided at church.
· A letter dated 20 December 2024 from a former President of the applicant’s church in [Suburb 2], Australia, [Mr A]. It is stated they have known the applicant for many years, she is from a Christian home with faithful God-fearing parents, and she is reliable and trustworthy. The letter outlines the assistance the applicant has provided for her churches in Australia.
· Letter of 20 December 2024 from the Reverand of the applicant’s [Tongan] church, [Mr B]. It is stated he has known the applicant for over five years and that she has had consistency and stability to be a leader among the youth and a great role model. The applicant’s contribution to her church in Australia and leadership skills are noted.
Department’s request for further information
On 6 January 2025 the Department wrote to the applicant seeking she provide it with information for her protection visa application. The Department raised with the applicant in its correspondence that her claims did not include key details and she had not provided any evidence in support of her claims. The Departmental delegate expressed concerns about the genuineness of her claims and invited her to provide further evidence and information in support of her claims, including whether she sought medical attention in relation to the abuse; whether the authorities were involved in her relationship with her mother; if she sought help from government or non-government support services in Tonga, New Zealand or Australia for victims of domestic violence; the details and evidence of the [agency 1] in [the named location] that she resided in; when and how she was last threatened or harmed by her mother; when and how she last spoke to her mother and the nature of that contact; and evidence of the email threats she received from her mother. The Departmental delegate outlined that her previous travels to Australia and return to Tonga without facing harm from her mother after the incident in October 2023 appeared to contradict her claim that she will face harm on return to Tonga from her mother. It invited her to provide an explanation for that.
The Departmental delegate also outlined that the applicant appears to be of working age, speaks Tongan and English, and has been employed by the Tongan government and is a holder of a Bachelor degree. They outlined that the information before it appears to suggest she would be able to access employment, housing, and other services in another location within Tonga such as Vava’u, Ha’apai, ‘Eua and Ongo Niua and that it may be reasonable for her to relocate to another location in Tonga. It invited the applicant to provide any reasons why it would be unreasonable for her to relocate to Vava’u, Ha’apai, ‘Eua and Ongo Niua.
On 11 January 2025 the applicant responded to the Department’s correspondence. In that document she stated:
· In Australia whilst there is knowledge of physical abuse, verbal abuse, and emotional abuse, in Tonga this is known as actions of discipline or ‘Tongan parenting’. In Tonga these actions are a common and normal way of parenting and it is not common to complain about her experiences of being raised at home. It is not illegal to discipline a child in Tongan ways or though Tongan parenting. Whilst this is used occasionally to discipline children in Tonga, she experienced extreme and constant abuse.
· There are no psychologists and professional counsellors in Tonga to confirm the actions of her mother are a mental problem. She has realised in Australia her mother has a serious mental problem. Her mother always wanted to kill her and someone always intervened in the past stopping her from ending her life.
· Even though she was physically hurt and bruised by her mother on many occasions that she was assaulted she felt ashamed to disclose it to anyone. She got medical treatment in October 2023 when her mother last beat her during her grandfather’s funeral. She was beaten on 25 October 2023 and went to the medical clinic on 26 October 2023. She went because her aunt [Aunt A] was worried about the status of her ear and head so she took her to the medical clinic. She did not report then that her mother had beaten her and said she accidently hit her ears. She was referred to the hospital for a more thorough check up but did not attend as her family left to the outer island [to] take her grandfather to his resting place. She was afraid of being ashamed and that people would think bad of her. She thought they may believe she disobeyed her mother given the abuse she experienced. It was her aunt, after observing the assault and harm at the funeral in 2023, who sponsored her to escape from Tonga.
· It is unfortunate that she did not involve any authority in her relationship with her mother. It is due to cultural differences. She was under the impression she should always keep the relationship at home confidential regardless of the conditions. Tongans keep family matters confidential. They do not involve officials as expected by the customs and culture of Australia.
· She always believed if she complained about her mother openly to the officials in Tonga she would be perceived as a disrespectful daughter. Even telling her aunt and siblings and closest friends about her abuse deemed her a disrespectful daughter. If she went to the police this would validate the stories her mother told about her. A legal case in Tonga between mother and daughter is very rare. People would side with her mother and curse her. No one would believe her and she would get a bad reputation and it would lead her to be subject to cyber bulling by Tongans everywhere for not respecting Tongan traditions and customs. People in Tonga will gossip about her complaining about her mother and father. They will inform the next generation to avoid marrying her descendants because she complained about her mother publicly. It is shameful in Tonga to disclose being abused by her mother.
· Her father’s side of the family were aware that her mother assaulted and abused her throughout the years she lived with her. Even in New Zealand she could not disconnect from her mother contacting her. She was not capable emotionally to disclose about her mother abusing her to any official and was suicidal. She obtained counselling and scripture from her aunt.
· She stayed at the [named agency 1] in Tonga. She stayed there [between various dates].
· She attended a funeral of her grandfather near the end of 2023. Her relatives came from Tonga and from overseas. Her mother was mad at her for no reason during the funeral gathering and started physically hurting her at the funeral in front of her father’s relatives. Her aunt stopped her mother from hitting her. No one else stopped her mother from harassing and abusing her as in Tongan custom the parents have a right to discipline their child regardless of how they abuse or harass their children. Police are not involved in a situation like this because it is the Tongan way and not illegal.
· The last time she spoke to her mother face to face was at the funeral of her grandfather towards the end of 2023. Even though she has not spoken to her, her mother has told some of her relatives, including her brothers, that she has looked for her, and if she ever finds her again, she will make sure she crawls and cannot walk again. In Tonga it is normal for parents to express their barbaric thinking about their children like that publicly. She has had to hide from her mother since the last time she spoke to her at the funeral.
· She can no longer access the emails her mother sent to communicate with her. They were in Tongan. Her mother was always careful not to have evidence in writing of her abuse as she knew she’d have proof against her. She just says things directly through phone or face to face or indirectly through someone else.
· If she returned to her mother’s house, because she has no land in Tonga and does not have any accommodation somewhere else in Tonga, she will continue to hurt her and the harm she will face is unimaginable. She returned to the [agency 1] each time she returned to Tonga since early 2024 to the last time she returned to Tonga. This was a temporary arrangement on the understanding she would stay for a short time before returning to Australia. She cannot reside their permanently.
· After the incident in 2023 she was in hiding in Tonga. Starting at the airport she tried not to be seen by any of her family, from the church, village or any of her parent’s acquaintances that would inform her mother in Tonga. She wore sunglasses or hats to disguise herself so she would not be recognised. On the road she had her windows wound up. She tried to stay indoors so that she would not be seen in public so her mother would not find out. Some of the trips her mother did not know she was in the country until after she left. The trips that she knew she was in Tonga, she returned soon after so there was no time for contact between them. If she was not in hiding, and went about normally her mother would definitely have found her or she is bound to meet her somewhere as Tonga is very small and she will definitely be hurt. Hiding is not the best way to live life, always anxious and in fear.
· Whilst in Australia she was living with [Aunt A]. The Department cancelled her visitor visa as they found she was spending most of her time in Australia from the end of 2023 to the end of 2024. She did this to avoid returning to her mother’s house. Her mother is the boss of her father and her father cannot do anything and is weak emotionally and follows her mother’s choices and instructions.
· In Australia people can move from city areas to vacant land and to the bush and to pick fruit. Tonga is a small country and is like one suburb in Australia. All the land in Tonga belongs to someone and every eight or four acres is registered in the government with the owners’ name. It is extremely difficult to move and live in the other islands of Tonga because she does not have any land registered in her name. She will be found to be trespassing by law if she moves elsewhere and lives anywhere. She will end up on the street. She will be exposed to sexual abuse as a female if she lives on the streets.
· Arranging it legally is a long process that is very costly and expensive which she doesn’t have the means and resources for. No matter where she is in Tonga, on the main island Tongatapu, Eua, Ha’apai or Vava’u, Tonga is a very small country and its people are interconnected. Everyone knows everyone whether they are blood related or related through marriage or as friends. Her mother will find out where she is as soon as she is relocated because people talk. It will not take long for her to find her, especially since it will be easy for her to travel from where she is to where she will be relocated.
· It will be difficult for her to fit back into the community, church, or find a job where she will be relocated because a part of her mother’s mental abuse is her defamation against her. She will contact the people in the community she will be in, or the village she will be in or the work she applies for and tell stories about her and make her life difficult to get a job and hard to live. She will be judged and criticised, feel out of place and cast out from any workplace, society and community. No one will believe her and no one will protect her because Tongan traditions and customs apply in all of Tonga’s islands in Eua, Ha’apai, Vava’u, and Niua.
· She is cut off from her remaining family, relatives, church, and village in Tonga. Her mother has spread how disrespectful she is and does not want any of her brothers or family in Tonga to support her in any way. When she goes back to Tonga her brothers are too scared to see her otherwise her mother will find out. Tonga is a very family oriented country keeping ties to first, second, and third cousins and she will be cast out and alone. Her mother knows her visa has been cancelled and that she may be sent back to Tonga. She contacted her uncle (her father’s brother in New Zealand) mocking her situation and saying she is cursed for disobeying her and now she gets her chance on her when she returns.
The applicant provided the Department with the following supporting documents with her response:
· Letter of 20 December 2024 from family friends who are missionaries of the applicant’s church in Australia. The letter comments on the applicant’s attributes and character.
· Letter of 20 December 2024 from the applicant’s Minister at her church in Australia commenting on her character and attributes.
· Letter dated 19 December 2024 from the applicant’s brother [Brother A].
· Further copies of the letters from 20 December 2025 from [Pastor A] and [Mr A].
· A letter dated 20 December 2025 from the applicant’s friend, [Friend A], who is a teacher in Tonga.
In [Brother A’s] letter of 19 December 2024 he states:
· The applicant is the only daughter with [number siblings] in the family. She is smart, talented, and has excelled academically and career-wise. She is her brothers’ biggest supporter, advisor, and confidant. She has a big heart, always tries to help others, and stays positive. She faces significant harm on return to Tonga and she is a victim of physical, verbal, and mental abuse from her mother. This has happened since she was a child, by being sworn at and beaten, to escalating to the applicant’s mother physically harming and hurting her with dangerous objects and knives placing her life at risk and danger.
· The applicant’s mother did not need a reasonable reason to hit the applicant and she hit her to get back at their father’s family since they raised the applicant when she was a baby and the applicant’s aunt in Australia. The applicant is loved by her father’s family which makes her mother angry as they did not approve of her before marriage. The applicant is passive and obedient so did not do anything during the abuse and she has bruises on her face, arms, and chest from hits from her mother. Her mother made up bad stories about the applicant to tell friends, family, and church members and called her names and insulted her.
· If the applicant were found to be sitting talking to her brothers she would get angry and tell her to cook and clean and she was isolated from her brothers. He has heard her mother state the applicant will die in a terrible/harsh manner. The applicant’s brothers always felt sorry for the applicant and tried to protect her. If they were not home the applicant would lock herself in her room but her mother would make her come out and hit her. When they are home she can come out and talk and eat. When they are home sometimes the applicant’s mother could still swear at the applicant and hit her as the house is big. When the applicant’s mother hits her one of the boys stops her and stays with the applicant until her mother leaves, but lately her mother has been more dangerous threatening the applicant with a knife or throwing a knife at her.
· During the funeral of his grandfather in October 2023 the applicant’s mother hit the applicant hard on the back of her head and she was dizzy, weak, and had to sit down. She had fever, earache, and discharge coming out of her ears that night so [Brother A] took her to the clinic the next day to get checked and she was referred to the hospital but they had to take their grandfather’s body to the outer island [the] next day so she could not go. He was concerned the applicant could have died from the pressure of how hard she was hit and where she was hit. The applicant’s mother has cursed the applicant saying she is cut off from the children and family and her aunt [Aunt A] is all she has for support. The applicant’s mental state is affected by the abuse she suffered from her mother and she lives in constant fear, stress, and she never felt at ease and was always looking for her mother. As the oldest body he represents her other brothers, born in [specified years], with the youngest having passed away, in saying the applicant is not safe in Tonga and in their tradition unmarried Tongan girls must live at home with their parents and she will not be safe at home. If she lives with someone else her mother will find out and it will be bad for the applicant and they do not know the level of harm she will receive and if she will be beaten, hurt, injured or killed.
In [Friend A variant’s] letter of 20 December 2024 she provides:
· The applicant told her she was doing all the housework in fear of her mother and how she was not treated like a daughter and instead hit and sworn at by her mother. The applicant showed her bruises and marks from when her mother hit her. The applicant was smart, class captain, sub-prefect and prefect at school and one of the top students but was nervous and scared to go home after school. The applicant’s mother made up stories to get the applicant in trouble, making her out to be a bad girl and a high head, so she could swear and hit her. She slept over at the applicant’s house and witnessed how the applicant’s mother treats her, including swearing, telling stories about her, and being hit. The applicant often had suicidal thoughts and could not defend herself as in Tongan society everyone would resent the applicant.
· The applicant’s aunt [Aunt A] always provided for her, sent her boxes or parcels of goods from overseas, and financial support through sending her money over the years. The applicant’s grandfather came from the outer islands to the main island in 2023 and the applicant moved to take care of him and to be safe from her mother. Her mother had got worse and had thrown a knife and used a knife to scare her and cut the other children off from her and threatened to have her name changed with swear words. The applicant’s grandfather passed away in October 2023 and during the funeral her mother made up stories to be angry at the applicant and make the family think she is a bad person and then she gave her a hiding in front of the family during the funeral, so hard on her head and the back of her head and neck that her ear has been affected ever since. The applicant’s mother has said she will always hit the applicant every opportunity she has and that will be the end of her.
· When the applicant returned to Tonga she picked up her at the airport and took her to the [agency 1]. The applicant’s parents have many connections and know so many people and when her mother found out the applicant was in Tonga she tried contacting her to find out where she was, as well as her boss, the principal, to say where the applicant was. If the applicant stays at another house her mother will get her to return to her home and will hit her and swear at her and change the story to make it seem like the applicant is the victim. The applicant’s father does not believe her and she cannot stay with family because the families are afraid of the influence that her parents have and that they will find out. The applicant’s mother cannot be stopped because of Tongan customs and children must obey and respect their parents.
Interview with the delegate
The Department did not invite the applicant to attend an interview to discuss his claims for protection.
The delegate’s decision
On 6 February 2025, a delegate of the Minister refused the applicant’s protection visa application. The delegate did not accept the applicant experienced ongoing physical assaults, harassment, threats, and persecution from her mother since childhood, or that she was assaulted by her mother in October 2023 at her grandfather’s funeral or sought medical treatment as a result of that assault. They were not satisfied the applicant would be at risk of gender based violence if she returned to Tonga or that she would experience economic hardship amounting to significant harm on return to Tonga. 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 she 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
On 6 February 2025, the applicant lodged an application for review of the delegate’s decision.
Pre-hearing submissions and evidence
On 28 April 2025 the applicant provided the Tribunal with the following materials:
· [Health Service 1] counselling notes for the period 13 December 2024 to 17 April 2025.
· [Agency 2] referral dated 15 April 2025.
On 29 April 2025 the applicant provided the Tribunal with the following documentation:
· A letter dated 25 April 2025 from [Ms B], who resides and works in Tonga and who studied with the applicant in New Zealand and who has known the applicant since 2013. It is stated the applicant approached her in her role as an academic representative seeking advice as she had a lot of pressure from home whilst studying. It is stated the applicant received phone calls and emails, which [Ms B] read, from her mother, harassing and bullying her, which drained the applicant mentally and emotionally. It is stated the applicant’s mother also contacted [Ms B’s] family and members of the Tongan community in New Zealand spreading false stories about her, including that she was pregnant, and asking them to spy on her and report back what she was doing. It is stated some of the applicant’s family in New Zealand started spreading the rumours and the applicant felt judged, and that some members went to the house she was staying in whist in New Zealand and tried to climb through windows and break in. It is stated the applicant started to miss lectures and spoke of suicide and [Ms B] assisted her by taking her to see [someone] who referred her for counselling. It is stated the counselling session went well and the applicant sat her final exams although the reflection of being under-pressure led to the failure of papers and the termination of her scholarship.
· A letter dated 20 March 2025 from [Hospital 1] in Tonga confirming the applicant consulted with right ear discharge on [a day in] December 2024 to the ear, nose and throat clinic and was diagnosed with mild otitis externa as her right external acoustic canal was a bit swollen with minimal pus discharge accumulated on top of an intact tympanic membrane. It is stated she received treatment through dry wicking and ear drops and did not return for follow up treatment because she travelled overseas.
· A letter dated 25 April 2025 from the [named agency 1], stating that the applicant stayed at [their] residence between [various specified dates in] 2024. It is stated they were made aware the applicant had no place to stay in Tonga as she was hiding from her family and that they are not a shelter and do not provide those services. It is stated there was agreement given the applicant’s circumstances that she stays as a temporary arrangement only but she cannot be accommodated on a longer or permanent basis.
On 16 May 2025 the applicant provided the Tribunal with a Psychological Assessment Report from [Agency 2] from a clinical psychologist who had conducted an assessment with the applicant on 23 April 2025. The report provides the applicant attended a 70 minute assessment, that her reported symptoms and presentation during the assessment are consistent with her reported background history and indicate she is experiencing symptoms characteristic of depression, Post Traumatic Stress Disorder (PTSD) and anxiety, and that she would benefit from supportive counselling and relationships counselling.
The applicant also provided the Tribunal on 16 May 2025 with a further copy of her [Health Service 1] counselling notes covering sessions between 17 December 2024 and 13 May 2025.
On 17 May 2025 the applicant provided the Tribunal with the following documents:
· A statement dated 27 April 2025.
· A letter of support from Ms ME dated 13 May 2024. In her statement Ms ME refers to having worked with the applicant’s family between March 2014 and March 2023 and of the applicant’s mother shouting, swearing and hitting the applicant. She refers to the applicant’s mother sharing that she abused, swore, and hit the applicant as she wanted all boys and the applicant’s grandparents loved the applicant. She states the applicant’s achievements led the applicant’s mother to punish her, that the applicant’s mother would wrongly accuse the applicant, and how she had threatened that the applicant will die in an unpleasant manner and that she will do something to the applicant such as pour acid on her or skin her alive or run over her with a van. She states the applicant’s mother has a licenced gun to shoot pigs and has threatened to use it on the applicant. It is stated if the applicant’s brothers defended or protected the applicant, her mother would find her by herself to abuse her. She states if the applicant left the house to stay elsewhere the applicant’s mother would get friends or family to bring her back home and that her parents are well known in the community have connections everywhere in Tonga.
In her statement dated 27 April 2025 and provided to the Tribunal on 17 May 2025 the applicant provides (in summary and as not already stated in her evidence):
· Her mother has called her names such as ‘whore’, ‘slut’, ‘animal-like’, ‘high-headed’, ‘smart-alec’, ‘heartless’, and swear works like a**hole, bi**h. She has repeatedly cursed her saying that she will die an ugly death, she will die by suicide and she will hang herself, or one day she will be found dead on the road stuck to an electric pole.
· Her mother has repeatedly said she is a disgusting and cursed child. On trips to the shops or errands her mother would question or beat her. If she sat in the back seat her mother would still reach from the front seat and slap and pinch her to the back. Her fingernails punctured her chest when she forcefully pinched her.
· On Sundays she helped with preparing the Sunday meal before church and would be sworn at and shouted at for being late. Her mother would beat and slap her. She would do all the washing of the house items on Saturday and was so tired she would shower and sleep but her mother would shout at her to go shopping. She would kick her thighs and beat her and when she cried her mother got madder and continued slapping her. Her mother pinched her stomach if she spoke against her, such as correcting her.
· When her mother and father got into a fight, her mother would approach her and tell her to talk to her dad to ‘stop mistreating her because she was the one that did everything at home and that she was right and that he should do what she wants’. She would say it is not her place to talk to either of them but her mother would be angry.
· Her father told her to visit her aunt [Aunt A] for her birthday. Her mother delayed arranging this. Even when her aunt agreed to pay for the ticket her mother got furious and came to her at work and started beating her saying she is too talkative and should not be talking back to her.
· On Mother’s Day in 2021 her mother was upset she did not get her presents and only a cake. She said she should have saved money for gifts. She cried and in response her mother started pulling her hair and punching her back.
· Her mother told her uncle, brothers, and Ms ME that she was big-headed, high-headed, and dressed like a whore/slut. She asked her mother why she said these things and her mother wanted to know who told her this. She didn’t believe her response and swore at her and beat her. Her father tried ringing her mother to tell her to stop. Her mother knocked on her door and when she opened it she beat her and pulled her hair.
· In June 2021 she was assaulted by her mother. Her mother was swearing in the kitchen. Her mother hit her with her bare hands and swore at her saying her brothers were disobedient because of her. She poked her eyes. Her blood vessels in her eyes ruptured. Her mother told others it was the devil (spirit) that poked her eye.
· In November 2021 her mother was sick and called her step-brother to come care for her because she wasn’t taking care of her. She didn’t know her mother was sick. She cared for her mother and made her the dessert she wanted but her mother told her father she had not cared for her. Her mother left to go to her step-brother’s place and her father shouted at her for not caring for her mother. In front of others her mother acted like a victim so others would pity her, especially her father.
· Her mother was admitted to the hospital and she was her main carer whilst her father was busy in his campaign for [Official A role]. When the doctor visited carers needed to be out of the room. Her mother asked her to go to the shop for necessities. Her father called asking why she left her mother to herself and asked her to hurry back. When her mother was discharged from the hospital and visitors came over her mother told visitors she was a disappointment and didn’t help at home and is high-headed and dressing up. Her mother swore at her and hit her with a broom which caused bruises on her arms.
· Growing up her father delegated her to be the communications person between him and his siblings for family affairs, especially concerning her grandfather. At her grandfather’s church missionary function she contacted brothers and sisters in New Zealand to remind them of contributions and to then give money and receipts to her father. Her mother was enraged and would swear at her and when she went into her room her mother got more angry and then pulled her hair and pushed her head to the ground. Her father has a licensed gun and her mother said when beating her if she had the gun she would shoot her for behaving like an animal and disrespecting her. She beat her with her hands. She travelled to New Zealand to visit [Aunt A] without her mother’s knowledge. Her brother told her that her mother would come to the airport and stab her with a knife and she didn’t mind going to prison as long as she stabs her first so she can’t leave the country and not succeed against her.
· At the kitchen with her mother and brother her mother was angry and got up. She walked past behind her and her brother said hey what are you doing, are you ok? When she looked back her mother was walking away with a knife. Her brother said her mother had walked up behind her and pointed the knife at her and attempted to stab her from behind when her brother shouted at her. Her mother was on the veranda swearing and hitting the knife on veranda poles. She locked herself in her room.
· Her mother told her aunt [Aunt A] that her and her family loathe and detest her and that one day she is going to do something to her and the family will later hear about it.
· In February 2023 she was making food with her uncle, his wife, and her brothers. Her mother started swearing and saying she hates looking at her. A knife flew past her and hit a metal pole and hit [Aunt A’s] son’s foot but he was not injured. Her mother got bags of frozen fish from the freezer and threw them at her.
· On the road she saw her mother at a roundabout give way to her. As she ran past her mother started beeping and lunged her van towards her but a vehicle behind was following so her mother could not come in. Another time she was driving and her mother drove towards her and turned her van to hit her and she had to turn to avoid being hit.
· She was looking after her grandfather and her mother came over. Her mother asked if she was at her grandfather’s house to oppose and compete against her. Her mother pulled her hair, dragged her to the ground and into the kitchen to get a knife. Her mother said she was going to get a knife to cut her head so she knows where she is and can never go against her. Her uncle’s wife started crying for her to stop. Her mother let her go and said she would skin her alive.
· She was assaulted at her grandfather’s funeral in October 2023. The family prayer service for her grandfather had finished and she was cleaning up tables after the food had been served. Her mother, her mother’s sisters, and all of her father’s sisters including [Aunt A], some ladies from church and a few family members had remained behind to talk. When she went to take the tablecloth off the table where her mother was her mother shouted angrily to behave properly and stop disrespecting her. She asked her mother what’s wrong and her mother got up and used a new aluminium foil that was beside her to hit her countless times on her head. She used all of her might hitting all over her head and swearing while she just stood scared bowing her head. [Aunt A] stood up and held her mother off. Her mother swore that she will beat her every chance she gets. Her head, neck, and shoulders were numb and her right ear was blocked, aching and discharging blood at first and then pus. She blocked it with cotton buds.
· Her mother deprived her of food and only provided food for her brothers. During Covid-19 she was sworn at and isolated but her brother was cared for when he got Covid-19. When her brothers brought her food she said to them next time she won’t give them food. Her pay was cut when she worked in the family [business].
· Her mother hates, abuses, and assaults her because she is a girl, female, the eldest and only daughter at home, and named after her paternal grandmother who did not approve of her mother marrying her father. She abused her to get back at her grandmother. Her father told her grandmother and his siters to let her mother punish her as she is her mother. She is hated as she reminds her of her grandmother even though her grandmother has now passed away.
· She worked at the family [business]. Her mother deduced employee wages and paid her brother when he wasn’t working. She told her father who got angry at her mother. Her mother got angry at her and told her brother which ignited bad emotions between her and her brother. Her mother blamed her for failing to make payments when she used that money herself. Her mother took out loans without her father’s knowledge and when her father asked her about this her mother got angry.
· She was the contact point between her father’s siblings in New Zealand and Australia and had contact regarding church functions and her grandparents. This angered her mother who didn’t want her to have communication with her father. Her mother insinuated there was an affair so her father would avoid contact with her. Any conversation with her brothers with talking and laughing would also anger her mother leading her to say there is an affair. Her mother didn’t want her to have a relationship with Ms ME either. She told Ms ME she knows how to use the gun and will use only one bullet to shoot her forehead and that she has thought of pouring acid all over her and that there will be a day where she will be on the floor helpless looking up at her and she will stare down at her. Her mother has seen [social media] posts she and Ms ME had made to each other, causing her mother to be angry at her.
· Country information indicates assault and abuse in Tonga is Corporal Punishment. The National Study on Domestic Violence against Women noted even though corporal punishment is not allowed, teachers still need to regulate students and use the stick. Violence in schools is tolerated. Reporting corporal punishment at home would have sent her back home with a bad turnout for her.
· Tongan cultural norms include respect for parents. Mele Katea Paea’s thesis on Tongan Leadership and Culture (2015) refers to Tongan identity and the Tongan values of family, religion, and respecting elders. In Tongan culture and in Tongan identity it is important to maintain relationships and connections. This begins at home. Even though she was abused physically and psychologically, she cannot stand up for herself and say she has rights as it is not the traditional Tongan culture and way and would negatively impact collective parties, values and benefits. She has to consider what would be best for the family as a whole. Respect in Tongan culture means listening to others, being silent, whether your parents do wrong by you. It is reported Tongans are taught to listen to their parents and not challenge and criticise them.
· Her father was [an Official A] and candidate for Parliament Representation. The re-election of [Officials A] required a lot of campaigning and support from the immediate family. Even though she was being abused her father required the family to put on a show. What people thought of them was more important than what was happening behind closed doors. Her father requested more help which angered her mother as they had more interaction.
· The Family Protection Legal Aid Centre noted in 2018 that 20% of domestic violence cases reported to the Centre were not being reported to the police because of trust problems or fear of being shamed. Her father asked her to take what her mother did to her to not bring shame on the family.
· Her parents are well known and have a lot of connections. They own a [business] in Tonga so they interact with suppliers, retailers, customers, clients, and other [businesses] and banks. Her father was the [Official A] for multiple years for [number] villages. This enabled them to be known and interact with the majority of the people from those villages during the district’s social and political functions. Her father is also one of the [leaders] at church. [Details deleted]. The majority of people in Tonga know her parents because she is the only daughter of her parents she is known as well. Whatever she did people would know who she is and tell her parents what she had done.
· She has a lack of confidence in the Tongan system and the ability of the authorities to protect her from harm. The Family Protection Act 2013 provides the legal framework for women to seek protection, security and justice from domestic violence, and a no drop policy by the police. There are service providers available supporting survivors of violence. The Women and Children Crisis Centre provides counselling, legal guidance, and support for survivors and 24 hours of free accommodation to women and children in a safe house. Just because there is a system, Act and laws in place it doesn’t mean those systems and the act and laws are being practiced. Efforts are being made to change the Tongan cultural norms but in reality it is hard for Tongans to accept, adjust, and adapt. A report from 2007 indicates domestic violence is a growing concern and is still a behind the doors issue. Reconciliation is still preferred. There is no unit or division with capacity to coordinate or deliver child and family welfare, leaving children exposed to violence and without appropriate responses if exposed to violence. A historic study indicates a difficult task is getting people to stop beating their children and cease using physical violence, vulgar language, and intimidation as discipline. If she were to seek help, she would not get it.
· Tonga is a small country and people know each other. Even whilst in detention, a Tongan officer has told her family in New Zealand about her and they have contacted her. If she does anything against her mother her mother would rather kill her and go to jail than see the satisfaction of her leaving.
· Reports by UNICEF indicate Tonga lacks a comprehensive legal framework guiding the delivery of child protection, prevention, and early intervention and response services. The Domestic Violence Study found violence against women and children is widespread and deeply ingrained in the society of Tonga. UNICEF and the United Nations Development Fund for Women have reported violent punishment and humiliation of children is justified on cultural grounds by many Tongans. Tongan’s former Prime Minister and former Police Minister have opposed the Family Protection Act as it is a contradiction to Tongan culture. The role of Tongan police is to enforce the law not opposed it.
· Corporal punishment is lawful in the home. Children have limited protection from violence and abuse under the Crimes Offences Act 1926 and Family Protection Act 2013. The courts have not expressly declared that corporal punishment under Tongan law is unlawful and unconstitutional. A study from 2018 has reported on systemic and cultural abuse and mistreatment of children in families and schools. Tonga has not ratified the Convention on the Elimination of All Forms of Discrimination Against Women.
· She was granted a tourist visa with three years multiple entry ending in 2026. This was the only means to get away from Tonga as Australia was the only country she had a visa for. She didn’t want to become unlawful and had limited choice applying for another visa allowing her to stay beyond three months. She disguised herself at the airport in Tonga with glasses and a hoodie to minimise the people that would see and recognise her. She did not go home when she returned to Tonga but stayed at the [agency 1].
· When she returned to Tonga from New Zealand her contact with her mother was face to face and on the phone. She tried to approach her father for help but he took her mother’s side. Her mother threatened her to her face or called her and threatened her over the phone. She hasn’t captured, documented, or recorded all the times she was assaulted, beaten, or threatened by her mother.
· She has attempted to obtain medical records from the [named] Clinic that she went to in 2023 after she was assaulted by her mother. She has messaged on 19 April 2025 a worker at the clinic to obtain evidence that she attended the clinic and followed up on 21 April 2025. On 28 April 2025 the pharmacist advised her she cannot obtain a letter as the doctor who did her check-up had migrated overseas.
· [Aunt A] witnessed her mother assault her and [Aunt A] told her to seek medical help for her injury. She drove to [Aunt A] when she was assaulted and as she could not drive and her brother [Brother A] drove her and [Aunt A] to the [named] Clinic which is why her brother has stated in his letter that he took her to the clinic. She was referred to the hospital but had to leave to the [named island] so she could not go to the hospital. She used cotton balls to plug her ear. It had blood and pus and was blocked and aching. As soon as the funeral plans were completed in [the island] she returned to Tonga and came to Australia without a chance to go to the hospital to check her ears. When in Australia her right ear was still blocked and she waited until returning to Tonga to treat her ear.
· In December 2024 her ear problems persisted and she had hearing problems. She went to hospital [in] December 2024 in Tonga and did not return for a check-up as she travelled to Australia. She has recurrent ear problems.
· Her siblings live with her parents and are dependent on them for food, accommodation, clothing and everything else. They cannot support her. When she returned to Tonga she did not meet her siblings. They were too scared to disobey her parents. She has messaged her brother [Brother B] last year a few times and he did not respond or contact her back. She contacted him this year and found out he has blocked her. Her brother [Brother A] has provided a support letter in December 2024 and later sent a message asking if she had money. He didn’t reply to her later when she reached out to him. He has also blocked her. Her siblings are now unwilling to contact, help, or support her and are following her parents and cutting her off from the family. The only people that used to protect her against the harm were her father and brothers who have now sided with her mother and have cut her off. There is a Tongan saying that to have no kin is to be in extreme poverty.
· If she returns to Tonga she will be cruelly treated and degraded. She will be intentionally tortured physically and mentally and will be arbitrarily deprived of her life by her mother. She has been previously tortured mentally and physically by her mother punishing her for acts or crimes that she did not commit and that she was blamed for. She has been tortured mentally and physically, received cruel treatment, and been degraded countless times, punishing her in return for what her paternal grandmother did (grandmother not approving of her mother marrying her father). She has been punished for being a female in the family and for having a loving, familial bond with her father and her siblings and for existing. She has been physically and psychologically assaulted countless times, mentally tortured by her mother for the purpose of intimidating and scaring her, deprived of food, and cut off and omitted from the family, which is unbearable in the Tongan culture and as a Tongan to be in Tonga and not have that sense of belonging. This makes her a disgrace, shameful and an embarrassment where other people will now cut her off as well and not want to associate, help or support her. She has been the subject of defamation and false accusations to the most horrendous deeds that have extremely humiliated her within her family, the community and the country. She has been defamed and accused of having sex with boys, accused of being pregnant, accused of having an affair with her own father, accused of having an affair with her brothers because she is a girl-to name a few. She believes that if she returns to Tonga, she will be subjected to worse than all that she has encountered and the only thing worse than that is death. She is scared for her life physically and mentally.
· On 14 May 2025 she received an email from her mother cursing, mocking, and threatening her in Tongan. There is definitely a threat to her life if she returns to Tonga. Her mother has threatened in her email that she will beat and skin her alive. She will not have freedom in Tonga. She will be in hiding, having to disguise herself so she is not recognised and people inform her parents and family that she has returned. Her mother’s [relative] works at the Tongan airport. She will not have the freedom to go anywhere such as shops, churches, banks, find a place to stay, or find a job for fear of being seen by anyone that knows her and knows her parents/family as news travels fast in Tonga and her mother will then come for her. As she will not have freedom, her capacity to maintain and support herself will be at a minimum and limited. Her ability and capacity to subsist will be threatened because when she returns she will be homeless and she will not be able to freely look for a place to stay in fear that she will be seen and found by her mother and family.
· She will face significant economic hardship because she does not have any money and has no one to support or help her in Tonga. She will be cut off from looking for jobs, society, the community, the village. People do not want to support children that are presumed to go against their parents by moving out of their parents’ house (as this goes against the Tongan customs and culture). Her mother has told most people that she can, turning everyone to hate and despise her so that no one will support her, if she needed help. She fears returning to Tonga will push her over the edge with her mental/psychological state. The ongoing abuse and assaults have affected her psychologically. She has very bad anxiety attacks every time she is in a situation fearing the unknown with a tight chest, shortness of breath, no voice, cold hands and feet, weakness, no energy, no desire to do anything, and trembling. She had suicidal thoughts in the past due to the problems with her mother. In Tonga, mental health is not commonly talked about and people seeking mental health support are mocked and rumoured. People seeking mental health support will not be trusted as well as their family members also and their generation to come being labelled as crazy. She learnt to keep everything to herself and cope and booked and missed several mental health appointments for that reason before being able to finally attend a session. The psychological sessions are emotional though she does feel lighter and a bit better after. The past few months of applying for a protection visa has greatly affected her mental health. She cannot sleep well and has no appetite and she does not want to be around people. She feels hopeless, has thought about suicide, has had an image of cutting her hand, and knows there is no hope for her in Tonga.
· The type of harm that she fears would happen to her if she returns to Tonga is physical harm, psychological/emotional harm, domestic violence harm, discriminatory abuse/harm, and social punishment. The biggest fear she has is the physical harm and domestic violence harm from her mother. She will hit her with an object, pouring acid on her, shooting her with her father's licensed gun, run her over with the vehicle, skin her alive or stab her with a knife. She believes her father and brothers may also physically harm her by beating her if she returns to discipline her and to side and support her mother. Psychological abuse has scarred her psychologically and emotionally just as badly as physical abuse. Her mother and her mother’s sisters as well as her family will cyberbully her as they have in the past as well as her mother threatening her with the different ways that she will harm her. Her mother will also intimidate, harass, humiliate and swear/verbally abuse her just as she did in the past but worser now. Her mother and her family will also discriminately abuse her because she is a female by continuing to verbally abuse her that she is a whore, a slut, has sex with boys, and imply that she is trying to reach out to her brothers and father for help as she is having a sexual affair with them. She will be subject to abusive and disrespectful attitudes, judgements and comments from others.
· She would not be safe in another part of Tonga. It is a small country where people are interconnected, and her mother would still be able to find her. She could not support or protect herself. The Tongan society is characterized by strong kinship ties and extended family networks (known as kainga). In the Tongan system, individuals are closely connected to their extended family, and familial obligations are deeply ingrained. This close-knit structure means that relocating to another part of Tonga will not provide anonymity or safety, as family members are likely to be present or have connections throughout the country. The pervasive nature of these networks will make it difficult to escape familial control and abuse. Chara Scroope’s article on Tongan culture (2018) states that the Tongan society is collectivistic, meaning that Tongans tend to be group-oriented and interdependent with one another. Individualism, whereby an individual prioritizes their personal interests over the group's interests, is looked down upon. Traditional expectations in the Tongan society are that children, especially daughters, remain in the parental home until marriage. In the Tongan culture, the family unit consists of a married couple and their children living under the same roof. Even when the children reach 21 years of age, they are still expected to live with their parents and this practice is deeply rooted in cultural norms and expectations. This tradition is a reflection of cultural values that emphasize family unity and respect for elders. This expectation may be lenient for sons but is non-negotiable for daughters as it is tied to cultural values that emphasize the protection of women’s chastity and the preservation of family honour. Women who live independently and alone are perceived as bringing shame and dishonour to the family, tribe, village and community. For her, to attempt to live alone will lead to social ostracism-being intentionally ignored, excluded and rejected in all ways in the community, lack of support and being at higher risk of harm. According to an article on the Tongan culture and etiquette by Chara Scroope (2018), women usually do not go around in public alone. Instead they will have to be accompanied by another woman, their husband, or a male relative. All of which she will not have when she returns to Tonga so she will not only be at risk from harm from her mother but from others as well being a single, young woman living alone.
· Land ownership and inheritance laws favour men, limiting economic dependence and options for relocation. Land ownership is a highly-debated issue in Tonga. Only men have legal rights to inherit lands and land inheritance rights pass through male heroes; women have no independent land rights. As a consequence, women with no land or income remain in households with domestic violence and abuse with no viable means of support to leave, states an article on “Gender Equality” prepared by the Ministry of Internal Affairs. Despite being the eldest daughter, she has no land and is not entitled to any of her father’s land, properties or bush allotments. All the land, properties and allotments have been divided between her brothers. Because of the barriers faced by women in property and land inheritance, women with no assets or income will be forced to stay in households with violent family members. Women find themselves unable to leave due to the high risk of homelessness, as published by the UN (2022) in an article on “Gender Equality Brief for Tonga”.
· Even if she tried to rent somewhere, it would be hard without support or money, and word would quickly get back to her mother about where she was. It is especially hard for a single woman with no family backing to find a place to live alone. She would be at risk physically, emotionally, and socially - and would have no protection if anything happened to her. Support services are minimal to none to single and independently living women in Tonga. The perception is, (despite her circumstances) if she does not need the support of her parents then she is well off and does not need the support of anyone else. As per the UN article on “Gender Equality Brief for Tonga” (2022) discrepancies exist in the aid and provision of support to female headed households in Tonga. A female-headed household is only considered for support and aid distribution if the woman leading is widowed. Single, abandoned, divorced, or separated women are not considered. As per the “Gender Equality” article prepared by the Ministry of Internal Affairs, Kingdom of Tonga it notes the differences in the lived realities of women living in the Outer Islands, women living in remote villages and women living in Nuku’alofa in terms of access to basic services such as protection and justice, health, and safety. She feels safest in Australia where her mother cannot reach or do anything to her and because her aunt [Aunt A] and her real brother lives in Australia.
· As a young, single Tongan woman without family support, it is extremely hard to find safe, stable work. Employers in Tonga expect you to have family backing or connections and hire people with renowned and respected backgrounds, which she does not have. Discrimination is also common and when they find out her background, she would not have a chance and would be vulnerable to exploitation. She has no land, no home, no money, and no one to help her. A job would not keep her safe from her mother and family who would find her. A report written by the Director of the Women and Children Crisis Centre (WCCC) ‘Ofa Guttenbeil-Likiliki on “Advancing Women’s Representation in Tonga” reported that young women are judged more harshly for the way they live and behave and if they step out of the cultural norm, they are seen as unworthy of positions in the workplace and in society and are often isolated from youth groups.
· She does not know anyone or place in Tonga that could help support and protect her. No one would welcome her especially after leaving her home. The traditional Tongan culture places a significant emphasis on respect and adherence to elders. Women are expected to maintain family harmony and face societal pressure to remain silent about abuse. When she reaches out to people for help and protection like churches, elders, community leaders etc their first instinct will not be to protect and assist her, but it would be to call her parents and tell them where she is because she would be breaking cultural norms causing mayhem. People will not want to support her for they may see it as an encouragement to children to stand up for their rights.
· A report written by the Director of the Women and Children Crisis Centre (WCCC) ‘Ofa Guttenbeil-Likiliki on “Advancing Women’s Representation in Tonga” states that young women are not encouraged to stand for what they believe in and to assert their rights - if they do so they are seen as uncontrollable and their mothers are deemed to have failed in their duty of raising them. She would be punished for running away and for disrespecting and bringing shame to the family. She would never be free or safe. There is no way to hide or start over. Despite the enactment of the Family Protection Act in 2013, challenges remain in effectively addressing domestic violence. Cultural beliefs and societal norms prevent women from reporting abuse, and support services are limited, especially in rural areas and much less in the Outer Islands. While organizations like the Women and Children Crisis Centre provide support to victims of domestic violence, their reach is limited particularly in remote areas and much less in Outer Islands. A national study revealed that 79% of Tongan women and girls have experienced physical or sexual violence in their lifetime, with 68% affected by physical violence. Given the high prevalence of domestic violence, the pervasive nature of kinship networks, cultural expectations, and limited support services, relocating within Tonga does not offer a viable solution for escaping abuse.
· The only person and place that will support her is her aunty [Aunt A] in Australia.
Included in her statements are photographs of her ruptured eye, injured ear, of manually amended time sheets, of the conversations she has had via text message with the pharmacist at the [named] Clinic, messages she sent her brothers that were unanswered and an indication that the person is unavailable on [the messaging service], a birth certificate for her brother [Brother C], a Supreme Court of Tonga order providing that [Aunt A] and her husband are to have parental responsibility for [Brother C].
On 19 May 2025 the applicant provided the Tribunal with an original and translated message to her, dated 14 May 2025, from her mother. The message refers to the applicant’s horrifying and disrespectful behaviour and attitude, and that if the applicant returns she is going to beat her up and peel her skin. It is stated she should avoid time and money applying for a visa and that she cannot hide, that it is just as well she didn’t catch up with her when she returned as if she had she would have sliced her alive so she cannot leave and if she returns to Tonga it is a small place and she will search for her and she may have a terrible suicide death somewhere.
On 23 May 2025 the applicant provided the Tribunal with a certified translation of an email from her mother dated 21 May 2025. In that email her mother curses her and threatens to beat her to death on return to Tonga. It is stated everyone in Tonga knows about how profane she is towards her mother and her father.
The hearing
The applicant was initially invited to appear at a hearing before the Tribunal via MS Teams videoconference on 10 April 2025. On 7 April 2025 the applicant wrote to the Tribunal seeking a postponement of the hearing, indicating that she had difficulty finding legal support and that she was collecting supporting documentation that required translation. She indicated her mental health was impacted and she required time to recover from increased mental health symptoms over the weekend. The Tribunal considered her request to be reasonable in the circumstances and postponed the hearing until 1 May 2025.
On 28 April 2025 the applicant wrote to the Tribunal requesting an extension of time to provide supporting materials to the Tribunal, indicating that she expected to receive a psychological report by 7 May 2025. In further discussions between the applicant and the Tribunal as to her email, she requested a postponement of the hearing listed for 1 May 2025 to allow her to provide the Tribunal with the psychological report and other supporting documents. The Tribunal consented to the request. It re-listed the postponed hearing for 19 May 2025 and requested that she provide the Tribunal with all documents she intends to rely on to support her case by 16 May 2025.
On 15 May 2025 the applicant requested a further postponement of the hearing scheduled for 19 May 2025. She indicated in her request that she had not yet been able to obtain her psychological report and translated documents she intended to provide the Tribunal. The Tribunal clarified with the applicant what additional documents she anticipated providing the Tribunal in addition to the psychological report, which she confirmed on 16 May 2025 to be emails with her mother, messages with a person who previously worked at the family company, and messages with a pharmacist.
The Tribunal considered her further postponement request and in the context of the number of prior postponement requests, the applicant’s personal circumstances, the nature of the documentation expected to be provided to the Tribunal, and the length of time the applicant anticipated she required to obtain documentation, the Tribunal considered it was more important to hear direct evidence from her and provide her with a period post hearing to provide it with the additional material to consider. On 16 May 2025 the Tribunal wrote to the applicant and confirmed the hearing listed for 19 May 2025 would proceed and the Tribunal would discuss with her at hearing a timeframe for the provision of additional materials following the hearing. As outlined above, on 16 May 2025 the applicant was able to provide the Tribunal with a psychological report from [Agency 2] and on 17 May 2025 with a further statement, letter from Ms ME, and photographs of text messages with a pharmacist in Tonga. She was able to provide it on 19 May 2025 with a translated email from her mother.
The applicant attempted to appear before the Tribunal on 19 May 2025 by MS Teams videoconference to give evidence and present arguments. Despite multiple attempts by the applicant’s detention facility to connect her via videoconference on MS Teams the applicant was only able to connect on MS Teams via sound and not video. No other rooms were available at the applicant’s detention facility to attempt to connect the applicant via videoconference. Given the circumstances, and the applicant’s preference to proceed with video and not via audio only, the Tribunal agreed to postpone the hearing so that another room could be sourced by the applicant on an alternative date with different videoconferencing facilities. The applicant consented to a postponement of her hearing until 23 May 2025 so that a further attempt could be made to connect via MS Teams videoconference.
The applicant appeared before the Tribunal on 23 May 2025 by MS Teams videoconference to give evidence and present arguments. The applicant requested one witness give oral evidence in support of her appeal, her aunt in Australia [Aunt A]. The Tribunal heard from [Aunt A] via telephone. The applicant was not represented in relation to the review.
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 speaks English and did not require the services of the interpreter other than a few instances of clarification. The applicant was able to answer questions without hesitation and her answers demonstrated an understanding of the questions being put to her.
As outlined above, in advance of the hearing the applicant provided the Tribunal with a psychological report and her clinical notes from her telephone counselling sessions. After discussing a few matters with the applicant, the Tribunal was satisfied the applicant was able to understand its questions, respond to them, and participate effectively in the hearing. The Tribunal acknowledged the applicant’s documentation in respect of her mental health symptoms at the commencement of the hearing and reminded the applicant she could request breaks throughout the hearing as needed, in addition to scheduled breaks.
The Tribunal is satisfied that the applicant had a meaningful 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 and the oral evidence of [Aunt A] is referred to in the analysis below.
Post-hearing submissions and evidence
The Tribunal provided the applicant with a period until 2 June 2025 to provide it with further certified translations of documents in support of her review that she was still waiting to obtain from translating services and any further emails from her mother.
On 2 June 2025, the applicant provided the Tribunal with a certified translation of text messages between herself and Ms ME dating from 17 August 2021 to 27 October 2023. The messages refer to the applicant’s mother’s threats against her, of bashing the applicant, and of the applicant’s fear at home with her mother.
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 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.
Nationality
The applicant claims to be a citizen of Tonga and provided a copy of the bio-data page of her Tongan passport to the Department. The delegate was satisfied that the applicant is using her own identity and that she is a citizen of Tonga. The applicant has consistently claimed to be a citizen of Tonga. At hearing she stated she is a citizen of Tonga and that she is not a national of any other country. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of Tonga and Tonga is her receiving country for the purposes of assessing her claims for protection.
Analysis, reasons and findings
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 matter should be set aside and remitted for reconsideration.
In the hearing, the Tribunal discussed the applicant’s protection claims, why she fears harm on return to Tonga, the harm she experienced there, her supporting documentation, her personal background, her family circumstances and history, and her work, education, travel, and residential history. The applicant advanced the same claims at hearing as detailed in her written protection visa application. She claims she will be harmed on return to Tonga by her mother who has mentally, physically, and emotionally abused her throughout her life and whose abuse of her has escalated as she has aged into adulthood. She also claimed she will be isolated by other members of the Tongan community on account of her defiance of her mother and forced by members of the Tongan community and the Tongan authorities to reconnect with her mother owing to Tongan cultural constructs which insist that she maintain ties with her family and support her mother and father.
The Tribunal does not share the Departmental delegate’s concerns in respect of the credibility of the applicant’s claims. It found her to be a reliable and credible witness and her oral evidence at hearing to be consistent with the significant written evidence that has been provided in support of her claims. Whilst the Tribunal has not arrived at each of the same conclusions as the applicant as to her circumstances on return to Tonga, it accepts she experienced persistent physical, emotional, and psychological harm from her mother whilst in Tonga and that she faces harm from her mother on return to Tonga in the reasonably foreseeable future. The Tribunal’s findings and assessment in respect of the applicant’s claims are set out below.
The applicant’s personal background and family circumstances
The applicant has detailed extensively in her written evidence her family history in Tonga. She also provided detailed evidence at hearing about her family circumstances. The Tribunal accepts she was born in Tongatapu and that she was raised for the initial years of her life in the outer islands of Tonga by her aunt [Aunt A] and her grandparents. [Aunt A] confirmed in her oral evidence that the applicant was in her care until she was five years of age. The Tribunal accepts at five years of age the applicant’s mother and father took her from the outer islands to live with them on the mainland in Tongatapu.
The Tribunal accepts the applicant completed primary and high school in Tongatapu between [specified years] and that she obtained a scholarship to study in New Zealand between [specified years], although she did not complete her studies. It accepts she completed a [Course 2] between [specified years].
The Tribunal accepts the applicant worked firstly in Tonga in her parent’s [company]. She explained at hearing that she initially worked as a secretary in the company before doing appointments, working as a runner, making payments, preparing wages, and printing documents, as well as cooking lunches and delivering lunches for employees. The Tribunal accepts her father asked her to leave the family business and that she then commenced working for the Tongan government where she worked on the [specified project] for the Ministry and [another project] and activities between January 2022 and October 2023.
The Tribunal accepts that whilst in Tonga as a teenager and adult the applicant lived with her mother, father, and brothers in the family home in Tongatapu. It accepts she stayed with and looked after her grandfather at her [Relative B’s] home in 2023 when he was ill. It accepts she stayed at Ms ME’s home on occasion to escape her mother’s violence. It accepts, as she explained at hearing, that she would go and stay with her uncle at times to escape her mother or to a friend’s house. It accepts her mother called her friends’ homes to check where she was and then attended her friends’ homes and her uncle’s house to bring her back to the family home.
The Tribunal accepts the applicant’s mother and father still own and work in a large [business] and Tonga. It accepts the company employs approximately [number] staff and has [type of contracts] in Tongatapu and on the outer islands as well as [a specified location] in Tonga. It accepts the applicant’s father was [an Official A] in Tonga for [number] local villages until 2023 and that he ran as a candidate for the People’s Representative in Parliament in [year range] although was not successful in that campaign. The Tribunal accepts the applicant’s mother was [involved with a charity] in Tonga in connection to the applicant’s younger brother’s [death]. It accepts her mother and father remain living in the family home in Tongatapu.
The applicant explained at hearing that she has [number] brothers that remain living. She explained one of her brothers has been legally adopted by her aunt [Aunt A] in Australia and now lives in Australia. She stated her other [brothers] live in Tonga in the family home with her mother and father, work in the family business, and are wholly financially dependent on her mother and father. The applicant has provided the Tribunal with a letter of support from her brother [Brother A], as outlined above. At hearing the applicant explained her brother [Brother A] has now cut off contact with her and she is also not in contact with [her other] brothers who remain living in Tonga, one of whom she has not spoken to since before she left in 2023.
The Tribunal had some reservations about the applicant’s evidence her brothers have each cut off contact with her in light of [Brother A’s] support letter of 20 December 2024 and the applicant’s evidence throughout the process that her brothers intervened at times when her mother harmed her. It raised with her at hearing its concern as to why her brothers would block her now given [Brother A] had stated in his letter of 20 December 2024 that she is one of her brothers’ biggest supporters, advisor, and confidant and given their consistent support of her during past instances where she had been abused. The applicant responded at hearing that it was hard for her to accept her brothers have not currently contacted her as she had a close relationship with them and they had tried to protect her. She explained how [Brother A] contacted her in Australia this year to ask if she was poor or had money and she had not responded, and when she had tried to contact him again he has since blocked her. She articulated how she believes the continued support her brothers get at home from her mother, and her absence from Tonga, has impacted their relationship, and they are ultimately loyal to her parents who provide them with work, housing, and support. She stated she fears they are under the belief if they support her, they will be going against their parents and will not get property, financial support, or an inheritance, and they cannot see anything worthwhile from their relationship with her given they get everything now from their parents.
The applicant has provided the Tribunal with photographs indicating the applicant’s brothers [Brother A] and [Brother B] have blocked her on social media. The photograph of the communication the applicant had with [Brother A] corroborates that they had contact in late December 2024, that the applicant messaged a greeting on 22 January 2025, and that [Brother A] responded on 6 February 2025, before the applicant attempted further contact on 4 May 2025 and was then blocked. The photograph of messages with [Brother B] indicates the applicant attempted contacts on 18 June 2024, 25 June 2024, and 20 July 2024 but each were not responded to and she has since been blocked.
Whilst the Tribunal has some reservations as to [Brother A’s] recent lack of contact with the applicant given his strong letter of support of the applicant dated 20 December 2024, it is prepared to accept given the applicant’s absence from Tonga and her brothers’ strong ties to her mother and father and continued reliance on her mother and father for financial support, housing, and employment, that they have ceased communication with her as she has pursued her application for protection in Australia and under the influence of her mother in Tonga.
The Tribunal accepts the applicant’s father’s family have all relocated to either New Zealand or Australia. It accepts her father is the sole remaining family member from her paternal side of the family in Tonga. It accepts she has a distant relationship with her father and that her father has throughout her life often been absent because of work and has continuously supported her mother over her and not provided her with protection. It accepts her mother has [siblings] in Tonga, located in separate villages on the [island] of Tongatapu. It accepts the applicant has other extended family members in Tonga, Australia, and New Zealand who she is not in contact with.
[2] Fiona C. Langridge et. al. (January 2021) ‘Child maltreatment as reported in a survey of the parents and teachers of primary school-aged children in Tonga’, Children and Youth Services Review, Volume 120.
[3] Loughborough University (2 November 2018), ‘Report highlights a culture of violence and abuse against children in Tonga’, Medical Epress.
[4] Angus McLean (April 2014), ‘Corporal punishment of children in Tonga – A violation of constitutional rights’, Asia Pacific Journal on Human Rights and the Law, 15(1-2), 73-118.
[5] Loughborough University (2 November 2018), ‘Report highlights a culture of violence and abuse against children in Tonga’, Medical Epress.
104. Country information indicates gender based violence in Tonga is prevalent[6], and not only in respect of intimate partner violence. Contrastingly to most statistics on violence against women and children, reports indicate that rates of physical violence by a non-partner in Tonga are particularly high, at 62%[7]. It is reported than three out of four (77%) women in Tonga have experienced physical or sexual violence in their lives by someone, partner or non-partner. However, the data indicates when comparing partner and non-partner violence, women in Tonga are almost three times more likely to have experienced violence by non-partners than by partners[8].
[6] United States Department of State, 2023 Country Reports on Human Rights Practices: Tonga; Freedom House, Freedom in the World 2024: Tonga.
[7] Ashlee Betteridge (21 May 2015) ‘Violence in South Pacific has intergenerational impact: UNICEF report’, DEVPOLICY.
[8] Jansen et. al. (2012), National Study on Domestic Violence against Women in Tonga 2009; NOFO ‘A KAINGA, Ma`a Fafine mo e Famili, Tonga, xxvi.
105. There is significant country information attesting to the connection between Tongan cultural beliefs and the widespread violence against women and children in Tonga[9]. Community attitudes towards violence against children and corporal punishment are reported to pose a child protection risk[10]. Tongan cultural perspectives, gendered relationships in Tonga and Tongan social structures and belief systems are reported to impact the systemic nature of family violence in the community[11]. There is less country information available regarding the perpetuation of violence against adult children in Tonga, including between female members of the family. The applicant has provided some corroborative evidence to the Tribunal suggesting the age of a child does not impact cultural perceptions in Tonga that a parent has a right to harm their child. The historical text messages between the applicant and Ms ME indicate the applicant texted Ms ME after she was harmed at the funeral in October 2023 by her mother and stated to Ms ME that the ‘oldman’ came and said prayers ‘and told them to calm down for it’s only a mum beating up her child’. The Tribunal finds the widespread and culturally acceptable abuse of children in Tonga enhances her risk of harm as an adult from her mother and of that harm being perceived in the Tongan community as rightful discipline from her mother.
[9] Jansen et. al. (2012), National Study on Domestic Violence against Women in Tonga 2009; NOFO ‘A KAINGA, Ma`a Fafine mo e Famili, Tonga; UNICEF (December 2017), ‘Situational Analysis of Children in Tonga’, UNICEF; Vaughan, C., Moosad, L., Rowe, J. (2022), Sexual and reproductive health and gender-based violence in Tonga: A review of policy and legislation, United Nations Population Fund, University of Melbourne.
[10] UNICEF (December 2017), ‘Situational Analysis of Children in Tonga’, UNICEF, 92.
[11] Sesimani Havea et. al. (25 August 2021) ‘Fofola e Fala ka e Talanoe e Kainga: A Tongan approach to family violence prevention and intervention’, Journal of Pacific Rim Psychology, 15; Jansen et. al. (2012), National Study on Domestic Violence against Women in Tonga 2009; NOFO ‘A KAINGA, Ma`a Fafine mo e Famili, Tonga.
106. The available country information before the Tribunal indicates the status afforded to female leaders in Tongan culture impacts the level of authority they are given over others in their family or kinship group. A landmark domestic violence study undertaken of women in Tonga in 2009 has reported in traditional Tongan culture women are held in high esteem with the most eminent social positions in society afforded to women, in the fahu system, with women often given unlimited authority over others in their kin group and ensuring respect and harmony in the family unit[12].
[12] Jansen et. al. (2012), National Study on Domestic Violence against Women in Tonga 2009; NOFO ‘A KAINGA, Ma`a Fafine mo e Famili, Tonga, xv.
107. Whilst the Tribunal has considered that the applicant will be returning to Tonga as an adult woman, it places weight on the country information before it as to the status afforded to female leaders in Tongan culture, the continuation and escalation of her mother’s violence of her into her adult years, the reported importance in Tonga of the family unit for stability and harmony in larger social units such as churches and villages[13], and her mother’s standing within both her immediate family and the broader community and finds these factors enhance the risk of harm to her on return to Tonga from her mother. The Tribunal accepts there is a significant power dynamic that favours the applicant’s mother over her in the family network and in the Tongan community.
[13] University of South Pacific (2 July 2019), Public Perceptions of Child and Adult Poverty in Tonga, USP, 10.
108. At hearing the applicant provided persuasive evidence as to her mother’s role in the church community, the business community, and how the women in Tonga perceive her mother as a respectable and successful business woman. She detailed how despite her father’s family initially not approving of her mother, her mother gained standing in the Tongan community after her marriage to her father, and through her father’s business, church, and community positions, and how her mother then herself developed prominence and respect in the community on account of her own business success, church and community roles, and financial wealth.
109. In this context, where the applicant’s mother has such significant social standing and cultural respect in Tonga, and violence against women and children is culturally acceptable and prevalent, it finds the applicant’s age and her absence from Tonga over the last twelve months will not reduce the risk to her of her mother continuing to harm her if she returns to the family home, at a private residence, at her workplace, or in the Tongan community. It finds given her mother’s past abuse of her into her adulthood and given her profile as a single woman with no family network returning to Tonga, there is a real risk her mother will continue to harm her on return to Tonga in the reasonably foreseeable future.
110. Section 36(2)(aa) of the Act requires that there is a real risk that the applicant will suffer significant harm on return to Tonga. Significant harm is exhaustively defined in s 36(2A) of the Act. It includes circumstances where a person will be arbitrarily deprived of their life; where the death penalty will be carried out on them; where they will be subjected to torture; where they will be subjected to cruel or inhuman treatment or punishment; and where they will be subject to degrading treatment or punishment.
111. The Tribunal accepts the applicant’s mother’s harm against her will take the form of physical abuse, including hitting her with objects and her own hands, speaking negatively about her in the Tongan community and spreading false rumours about her, verbal abuse, threats against her life, and attempts to isolate her from her family and the Tongan community.
112. The Tribunal finds the applicant’s mother’s pattern of behaviour does not support the applicant’s claims that she would rather kill the applicant and go to jail for having gone against her than have the applicant achieve satisfaction. The applicant was repeatedly threatened by her mother with death in Tonga yet her mother did not carry out those threats on multiple occasions despite having the opportunity to do so. The Tribunal accepts the applicant’s mother has made repeated threats on the applicant’s life as a form of emotional abuse and harm against her, although does not accept the applicant’s mother attempted to take her life when attacking her at the funeral or in respect of the incidents involving the thrown knife, threat with the knife, and repeated physical assaults of her.
113. The Tribunal is not satisfied the applicant will be subject to the death penalty or torture on return to Tonga, or that she will be arbitrarily deprived of her life. The Tribunal finds the applicant’s mother’s pattern of behaviour, despite her threats, does not indicate she will take the applicant’s life on return to Tonga or torture her for any of the purposes as set out in the definition of torture in s 5(1) of the Act. The Tribunal finds the applicant’s mother’s actions are directed at continuously belittling, physically harming, shaming, demeaning, and isolating the applicant in retaliation for the love she has received from her father’s family and owing to her hatred of the applicant and the applicant’s success despite the applicant’s mother’s attempts to diminish and belittle her.
114. ‘Cruel or inhuman treatment or punishment’ is further defined in s 5(1) of the Act and includes an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or pain or suffering, whether physical or mental, 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. The definition of ‘cruel or inhuman treatment of punishment’ contains an intent requirement, requiring an actual, subjective, intention on the part of a person to bring about the suffering by their conduct[14].
[14] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26] – [27] and [114].
115. The evidence before the Tribunal indicates the applicant’s mother has consistently and intentionally harmed her in the past, through acts of physical violence, derogatory language, spreading demeaning stories about her in the Tongan community, isolating her from family, and persistently belittling her. The Tribunal accepts the applicant’s mother will continue to intentionally enact this harm on her on return to Tonga. It finds she has limited support networks she can rely on in Tonga, with her remaining friends in Tonga prevented on account of cultural obligations and their own family circumstances from providing her with anything beyond emotional support. Considering her personal profile and history of trauma, the Tribunal finds the combination of physical harm, verbal abuse, derogatory stories spread in the community, and social ostracization she faces on return to Tonga in the reasonably foreseeable future from her mother and in the broader Tongan community amounts to cruel or inhuman treatment or punishment in accordance with s 36(2A) of the Act.
116. Given this, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessarily and foreseeable consequent of the applicant being removed from Australia to Tonga, that there is a real risk that she will suffer significant harm. The Tribunal finds given the applicant’s family residence in Tongatapu, their connections in the community through their business and the applicant’s father’s former position as [Official A], her father’s role as a Tongan [church leader], the location of the applicant’s mother’s sisters on either side of Tongatapu in different villages, and the population and geographical side of Tongatapu[15], the applicant faces a real risk of significant harm across all of the island of Tongatapu.
[15] Department of Foreign Affairs and Trade, Tonga country brief, accessed at
117. The Tribunal considered whether it would be reasonable for the applicant to relocate to an area of Tonga where there would not be a real risk that she will suffer significant harm, such as the outer islands of Tonga. Section 36(2B)(a) of the Act provides 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 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. Section 36(2B)(a) requires a consideration of whether there is an area of the country where, objectively, there would not be a real risk that the applicant will suffer significant harm, and, if so, whether it would be reasonable to expect the applicant to relocate to that area.
118. As outlined above, the Tribunal explored with the applicant at hearing whether she could live elsewhere in Tonga without experiencing harm from her mother. Whilst the country information before the Tribunal indicates freedom of movement in Tonga is not constrained for any reason and there are no restrictions on changing residence or employment[16], the Tribunal found the applicant’s responses at hearing persuasive that her ability to safely relocate to any of the habitable outer islands of Tonga is impacted by her mother’s extensive ties across Tonga by way of her business which [works] on the outer islands and has assisted with [community projects], her mother’s church connections, her mother’s financial means, and her father’s former work as [an Official A] across [number] villages.
[16] Freedom House, Freedom in the World 2024: Tonga.
119. The Tribunal has also considered that the applicant has no family networks or trusted family members in Tonga. It has accepted she is currently not in contact with her brothers, that her brothers and father are influenced by and support her mother, and that her extended family on her father’s side whom she is close to have all departed Tonga. It has accepted her mother’s [sisters] reside in Tongatapu on the outer edges of the island. It has considered the [Agency 2] report before it, which provides the applicant is suffering from depression, anxiety, and PTSD symptoms. It has considered the other country information and submissions before it which indicate women are disadvantaged and discriminated against in employment in Tonga[17], which has exacerbated since the Covid-19 pandemic with more women moving considerably into informal employment with a widening pay gap[18]. Whilst the Tribunal finds the applicant will have continued support from her aunt on return to Tonga, and some emotional support from her remaining friends in Tonga, it accepts this is insufficient to meet her housing, food, and day to day subsistence needs.
[17] Freedom House, Freedom in the World 2024: Tonga; United States Department of State, 2023 Country Reports on Human Rights Practices: Tonga.
[18] UN Women (undated), Two Years On: The Lingering Gendered Effects of the Covid-19 Pandemic in Tonga, accessed at
120. Considering the above, the Tribunal finds if the applicant were to move to an outer island of Tonga, such as Ha’apai or Vava’u, she will still face a real risk of significant harm from her mother. It finds her mother has the financial means to travel to the outer islands, business connections on the outer islands, and the motivation to harm the applicant if she were to return to Tonga and relocate to an outer island. Considering the applicant’s lack of family connections across Tonga, personal trauma history in Tonga and ongoing mental health symptoms, and the country information before it regarding discrimination in employment for women in Tonga, the Tribunal also finds it is not reasonable for the applicant to relocate to an area of Tonga where there would not be a real risk that she will suffer significant harm.
121. The Tribunal considered whether the applicant could obtain from an authority of Tonga, protection such that there would not be a real risk that she will suffer significant harm in accordance with s 36(2B)(b).
122. Country information before the Tribunal indicates the Tongan law in accordance with the Family Protection Act 2013 provides for protection from domestic and family violence, including by the issuance of protection orders[19]. The Tongan Police have a ‘no drop’ policy for complaints about domestic violence and once filed, domestic violence cases cannot be withdrawn and have to proceed in prosecution in the magistrates’ courts[20]. Domestic violence is a crime punishable by a maximum of twelve months in prison, a substantial fine, or both. Repeat offenders face a maximum penalty of three years in prison or a steeper maximum fine[21]. The Australian Federal Police has strengthened ties with the Tongan Police and provided new equipment to boost its capabilities to combat domestic violence and other crime[22]. There are some government funded organisations assisting survivors of family violence, including the Women and Children Crisis Centre, although reports indicate services have been overwhelmed since the eruption of the Hunga Tonga-Hunga Ha’apai volcano in 2022[23].
[19] United States Department of State, 2023 Country Reports on Human Rights Practices: Tonga.
[20] United States Department of State, 2023 Country Reports on Human Rights Practices: Tonga.
[21] United States Department of State, 2023 Country Reports on Human Rights Practices: Tonga.
[22] Australian Federal Police, (18 September 2023) ‘AFP assistance bolsters Tonga Police capabilities’, accessed at
[23] ABC News (17 April 2022), ‘Domestic violence cases rise in wake of Hunga Tonga-Hunga Ha’apai eruption, as women call for a power shift in humanitarian response’, ABC News.
123. The country information before the Tribunal also indicates despite the legislation and policies in pace in Tonga, violence and abuse against women is often not seen as a violation of human rights and is justified as a means of discipline and correction and dismissed as a private dispute within the family[24]. Despite domestic and family violence constituting an offence, 85% of women who have suffered domestic violence are repeat victims (indicating perpetrators are repeat offenders), and it is reported women are often forced to return to the same environment where they have suffered abuse[25]. Whilst family violence is a criminal offence in Tonga, prosecution rates are reported to be low[26].
[24] Australian Council for International Development (August 2020), Prevention of Sexual Exploitation and Abuse (PSEA): Country Mapping of Known Context, Legislation, Reporting and Referral Pathways – Tonga, ACFID, 6.
[25] Australian Council for International Development (August 2020), Prevention of Sexual Exploitation and Abuse (PSEA): Country Mapping of Known Context, Legislation, Reporting and Referral Pathways – Tonga, ACFID, 6.
[26] The Borgen Project (23 December 2020), Domestic Violence In Tonga: The WCCC’s Efforts, accessed at RNZ (3 August 2020), ‘Domestic violence on the rise in Tonga’, RNZ.
124. Although the country information indicates laws and policies providing for protection against family violence are in place in Tonga, the Tribunal is satisfied in the applicant’s specific circumstances that state protection is not available to her such that the risk of harm to her would be reduced to less than a real risk. The Tribunal has placed weight on the country information before it that indicates family violence is often viewed as a private dispute within the family, prosecutions are low, and that non-intimate partner violence in Tonga is significantly widespread. It has also placed weight on the persuasive evidence before it of the applicant’s mother’s role and reputation in the community and the impact this will have on the applicant’s ability to obtain protection from the authorities against her mother.
125. The Tribunal finds the risk of harm faced by the applicant is directed at her specifically by her mother, is not one faced by the population of Tonga generally and is faced by the applicant personally. The Tribunal is satisfied s 36(2B)(c) does not apply.
126. Given the above, the Tribunal finds none of the exceptions in s 36(2B) apply, and 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 she will suffer significant harm.
Does the applicant have a right to enter and reside in a third country?
127. On the evidence before it, the Tribunal finds s 36(3) does not apply. The applicant does not have a right to enter and reside in a third country.
Conclusion
128. 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).
129. 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). For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
130. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date of hearing: 23 May 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.
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