1714374 (Refugee)

1714374 (Refugee) [2018] AATA 639 (19 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714374
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:A B Baker
DATE:19 February 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 February 2018 at 3:42pm

CATCHWORDS
Refugee – Protection Visa – Papua New Guinea – Particular social group – Women in Papua New Guinea – Domestic violence – Rape – Witness credibility – Evidence in conflict with information in previous visa applications – Applicant returned to Papua New Guinea despite fearing harm – Applicant did not apply for protection while in Australia previously
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2, Schedule 4, PIC 4020
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on [in] June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Papua New Guinea, applied for the visa [in] June 2016. 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.
BACKGROUND
The applicant provided the Tribunal with a copy of the delegate’s decision along with her application for review.
The applicant is a citizen of New Guinea born on [birth date]. The department of immigration has indicated that the applicant’s Papua New Guinea passport is valid and not a bogus document. The Tribunal is equally satisfied that the applicant is a citizen of Papua New Guinea. She first arrived in Australia [in] August 2015 and departed in December 2015 before returning to Australia again [in] March 2016. At the cessation of that visa [in] June 2016, she lodged the protection visa application subject to this review. She is currently on a bridging visa A.
The applicant claims that her parents passed away in PNG ‘around 22 years ago’ and her [brother] passed away about 20 years ago. She was raised by her [aunt] and her family until her aunt’s death in 2015 when she went to live her [uncle] until she ran away in August 2015 after her aunt’s death. She claims never to have been married or to have any children.
In her application to the department, the applicant made the following protection claims:
a.She has suffered domestic and family violence, including rape, from her uncle and cousin.
b.She was deprived of basic needs such as further education and constrained from seeing her boyfriend and friends
c.The police are corrupt and cannot help her
d.If she returned to PNG her life would be in danger and she fears it may lead to her death.
The delegate found that when the applicant had made a previous [temporary] visa application she indicated that she was married to [Mr A] and had two [children] and they all resided with her parents and two [siblings] at the same [address].
The delegate refused the application.
CRITERIA FOR A 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 (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.
Complementary protection
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant have a well-founded fear of being persecuted for one or more of the five Convention reasons?
In her application to the department, the applicant made the following protection claims:
a.She has suffered domestic and family violence, including rape, from her uncle and cousin.
b.She was deprived of basic needs such as further education and constrained from seeing her boyfriend and friends
c.The police are corrupt and cannot help her
d.If she returned to PNG her life would be in danger and she fears it may lead to her death.
The delegate found that when the applicant had made a previous [temporary] visa application she indicated that she was married to [Mr A] and had two [children] and they all resided with her parents and two [siblings] at the same [address].
Tribunal hearing
The applicant’s evidence at the hearing was evasive, incomplete, lacking in relevant detail and frequently implausible. The Tribunal understands that people are nervous at a hearing and the use of interpreters is sometimes imperfect. However the Tribunal was satisfied that the applicant was given a fair hearing and every opportunity to put her evidence, clarify and restate remarks and otherwise respond to the Tribunal’s particularised concerns. The applicant was also given an opportunity to provide further documents, which she has done and which has been included, where relevant in the findings and reasons below. Those documents include three statements by [Ms B], some email exchanges between [Ms B] and [Mr C] and [another individual] relating to the applicant’s claims, a copy of the applicants [bank] statement dated [in] February 2016, a copy of the applicant’s [temporary] visa applicant and a statement by [Mr C]. Where relevant comments in these documents are included in the statement of findings and reasons below.
For the following reasons, the Tribunal is not satisfied that the applicant is a person to whom Australia’s protection obligations are owed.
FINDINGS AND REASONS
The applicant told the Tribunal that she was living in [Town 1] in an apartment that she shares with another [woman]. She pays [an amount] a week rent from her Centrelink payment. She does not work. She first came to Australia in September 2015 when she travelled to [an Australian city] with her friend [Ms B] to attend [an event]. She returned to PNG in December 2015 after three months. She returned to Australia again in March 2016 and applied for a protection visa three months later in June 2016. She told the Tribunal that she came to Australia because she was terrified of returning to PNG as she was being kept as virtually a slave and was beaten and raped by her cousin and uncle.
Asked why she returned to PNG in December 2015 when she was fearful of her cousin and uncle and was raped and beaten by them she said that she had no relatives here and didn’t know that she could stay and [Ms B] filled out the forms.
Asked how she travelled to Australia she said that [Ms B] applied for her passport for her in 2013 and kept it. The Tribunal questioned the applicant as to why she did not keep her own passport or travel to Australia earlier if she was in fear of her life. The applicant said that [Ms B] kept the passport because her cousin was [involved in illicit activities] and if her uncle or cousin found the passport they would kill her. She said that she didn’t travel earlier because she had no money and couldn’t read or write. She said that she had no evidence of what happened to her in PNG. Asked if there were any police or hospital reports or whether she sought conciliation or compensation from the village committees she said that she had not.
Asked how she found out how to apply for a protection visa on her second visit she said that she contacted some members of the church who told her what she could do.
The Tribunal put to the applicant that it found her account of why she returned to PNG from Australia in 2015 to be implausible. The Tribunal put to her that if she was in genuine fear of her life and suffered the harm she claimed, then the Tribunal would have expected her to remain in Australia. The applicant said that she was told that her visa was about to expire so she had to go back. She claimed that it was not until she got back to PNG that she remembered that her church friend told me that he could help. She said that when she returned to PNG she lived with [Ms B] for three months before she moved to [another location]. She said that she travelled to [City 1] and then to [City 2].
The Tribunal asked the applicant if she made all the arrangements for her second trip to Australia and she said that [Ms B] helped her get the visa and the tickets. She said that she found out about a place to stay in [City 1] when she arrived and asked the Security guard who gave her some advice. She says that she went to [City 2] the next day and then went to [Town 1] to say with a [lady]. She said that after two months she didn’t know what to do and someone told her about RAILS so she went to [City 2] to find them. She met someone on the train who told her where it was but she couldn’t find it. The next day she saw the same person on the train who took her to RAILS.
In some documents the applicant provided to the Tribunal after the hearing, there is a statement from the applicant’s friend, [Ms B] that states that the applicant travelled to [City 2] with a church friend for sightseeing for the duration of her [temporary] visa before returning to PNG.
[Ms B] also states that she learnt from friends in PNG that the Australian Government can assist victims such as [the applicant] so she decided once again to help the applicant to get to Australia to seek assistance.
These statements indicate to the Tribunal that the applicant not only knew, but had assistance from friends in [Australia] prior to her visit here. The Tribunal does not accept the applicant’s account that she only heard about protection applications when someone directed her to RAILS towards the end of her second trip to Australia in 2016. The Tribunal has formed a view that the applicant’s sole intention upon returning to PNG in December 2015 was to contrive a way of returning to Australia in order to seek protection.
The Tribunal puts very little weight on statements by [Ms B] that the applicant is not married and has no children. The Tribunal has formed a view that the applicant and [Ms B] have contrived the story of the agent in order to evade responsibility for the false claims and false information they have both provided to the department of immigration.
Despite having an opportunity to provide information on the alleged agent, [Ms B] has chosen not to identify him, stating vaguely that the applicants applicant was completed by an agent with information that neither she, nor the applicant provided to him. The Tribunal does not accept that the applicant was or is unaware of the agent’s name, or that she was or is unaware of the information provided to that agent in relation to her husband and [children].
The Tribunal put to the applicant the information she provided to the department in her [temporary] visa application including that she claimed she had a [husband], and two [children]. And that she resided with her parents and her two siblings. All had their dates of birth and their address recorded. The Tribunal asked the applicant if this information was true and she claimed that it was not. She said that she just signed the application after she gave the information to [Ms B] and the agent. The Tribunal put to her that it seemed and extraordinary effort to invent a husband and two [children], along with parents and siblings and she said that she didn’t know anything about it. The applicant strongly denied being married, having children, or that her parents and siblings were alive. The Tribunal put to the applicant that she signed a form with that information and if it were incorrect, false or misleading then she would not pass the PIC4020. Asked for her response she claimed that she didn’t know anything about the forms, but that she provided the correct information to [Ms B] and signed the form. The Tribunal put to the applicant that if it formed a view that she did not meet PIC 4020 she would be barred from re-entering Australia for 3 years. The applicant insisted that she did was not married and did not have any [children]. She said she only had a long term friend named [Mr D].
The Tribunal asked the applicant if she completed her protection visa application and she said that she did not. Asked if she knew what the claims were she said that she didn’t. The Tribunal asked the applicant what protection claims she wished to make.
The applicant told the Tribunal that she was scared to go back to PNG because her cousin and her uncle would kill her. She said that they would want her dead because she had run away from them. The Tribunal put to her that she did, in fact, return to PNG in 2015 after she was in Australia and suggested that she was not harmed at that time and could return. She claimed that she couldn’t go back because she had nowhere to stay. She had no friends or family. Asked if the church would help she said that they would not. Asked why they wouldn’t help she said that they wouldn’t.
The Tribunal asked the applicant if she had any documents or any other evidence to support her claims, including for example some corroborating statement from [Ms B]. She said that she didn’t. The applicant has subsequently sent several statements from [Ms B] attempting to corroborate the applicant’s claims. They have been dealt with above. She said that the pastor sent a letter saying that she wasn’t married but she didn’t know where that was. The Tribunal has located a document on the department’s file from a [Pastor] of [a particular church] stating that the applicant was known to him since 2009 and was not married. [The pastor] states that “she is a young lady not committed to a married life as stated in her visa application done by the agents”. The letter is not dated.
The Tribunal asked the applicant if she was in touch with anyone in PNG including [Ms B], [Mr D] or her relatives and she claimed that she was not. The Tribunal put to her that it seemed incredible that she would not remain in touch with [Ms B] after all the things that she did for her including getting a passport and tickets and a visa to Australia. The applicant said that she talked to her last year but she was afraid to talk to her in case her cousin found out. She said that if her cousin found out they were talking he would kill her. The Tribunal asked the applicant how her cousin would find out that she and [Ms B] were talking. She claimed it was because [Ms B] helped her.
The Tribunal put to the applicant that it was finding her account of what happened to her in PNG and her travel to Australia implausible and without a ring of truth. The Tribunal put to the applicant that despite claiming to be afraid for her life, she nevertheless returned to PNG in 2015. The Tribunal put to her that she claims no knowledge of anything in relation to her visa application and the declaration of a husband, children, parents and siblings. The Tribunal put to her that she nevertheless managed to get herself to Australia a second time and find accommodation and make her own arrangements to travel to [City 2] from [City 1] and on to [Town 1]. The Tribunal put to the applicant that these two parts of her account seemed at odds. The Tribunal asked for her comments and put to the applicant that if it formed a view that her account of events was untruthful it would form a reason or part of the reason for affirming the decision.
The applicant claimed that she had told the truth. She said she would die if she was returned to PNG. She said she felt safe in Australia and it was a good place.
The Tribunal spoke to the applicant’s support person who told the Tribunal that he found the applicant to be a reliable, honest and truthful person who would never set out to deceive the government.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal finds the applicant is a national of Papua New Guinea. The applicant provided the Tribunal with a copy of her Papua New Guinea passport and she made no claim to be a national of any other country.
The Tribunal accepts that the applicant’s claims should be assessed against Papua New Guinea for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).
CREDIBILITY
The Tribunal's task of fact-finding may involve an assessment of an applicant's credibility. In this context, the Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility.
The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt' (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
The Tribunal put to the applicant its concerns about her credibility during the Tribunal hearing and this matter is dealt with in the context of the findings and reasons below.
FINDINGS AND REASONS
Well-founded fear of persecution
The applicant claims that she has a well-founded fear of persecution from her [cousin] and her [uncle]. The Tribunal has considered the applicants claims for reasons of her being a woman who has fled an abusive family. An integer of that claim that the Tribunal has also considered is whether the applicant has a well-founded fear of persecution for reasons of being a woman in Papua New Guinea. The applicant claims that she is unable to receive effective protection for herself in Papua New Guinea. The applicant claims that as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea, there is a real risk that she will be killed.
In considering whether the applicant has a well-founded fear of persecution in PNG, the Tribunal has considered independent country information. There is ample evidence concerning the extent of violence against women in PNG.
Country information available to the Tribunal provides general background support for the applicant's claim to fear violence at the hands of her ex-husband. Among this information is a comprehensive and recent report prepared by Medecins Sans Frontières[1] which states, in part:
In Papua New Guinea, women and children endure shockingly high levels of family violence and sexual violence with rates of abuse estimated to be some of the highest in the world outside a conflict zone.
This is backed up by the experience of Médecins Sans Frontières/Doctors Without Borders (MSF), which has treated 27,993 survivors of family and sexual violence in the country since 2007.
In 2014 and 2015, some 3,056 people sought care for the first time in MSF-run family Support Centres in the capital, Port Moresby, and in Tari, in the Highlands region. Their accounts provide important insights into the patterns of intimate partner violence, family violence and sexual violence in these areas. Their experiences suggest that large numbers of people are suffering grave physical and psychological wounds in the very place they should feel the safest – within their homes and families.
The overwhelming majority – 94 percent – of these patients were female.
Most had been injured by their partners, family or community members, and in more than a quarter of all incidents involving intimate partners, the women had been threatened with death. Nearly all – 97 percent – of those patients had injuries that required treatment. Two in three had been attacked with weapons, including sticks, knives, machetes and blunt instruments.
[1] “Return to Abuser: Gaps and a failure to protect survivors of family and sexual violence in Papua New Guinea”, Medecins Sans Frontieres, March 2016.
Other reporting[2] supports a conclusion that rates of domestic violence are very high in Papua New Guinea, with as many as 70 per cent of women experiencing family or sexual violence at least once in their lifetime.
[2] See for example, “Papua New Guinea 2015 Human Rights Report”, United States Department of State, April 2016; “Domestic Cruelty: The Violent Scourge of Papua New Guinea”, ABC March 2016; “Women seek islands of refuge in Papua New Guinea’s sea of violence”, Guardian (Australian Edition) March 2016; “Bashed up: Family Violence in Papua New Guinea”, Human Rights Watch, November 2015.
While there have been some recent measures to improve the responses of the police and the judicial system to these problems, effective state protection is largely absent. There is evidence of unwillingness on the part of the police, particularly in rural areas but also to some extent in Port Moresby and other major population centres, to regard domestic violence against women as a suitable matter for official action and a tendency to dismiss complaints or abet the offender. The judicial system, in particular at village level, has demonstrated a general inability or unwillingness to penalize the few offenders who are charged and brought before the courts.
The Tribunal does not accept that the applicant suffered domestic or family violence at the hands of her cousin and uncle, or indeed anyone whilst she lived in PNG.
The applicant’s evidence at the hearing was vague and lacked credibility. She claimed that she had been violently raped, kept as a virtual slave and beaten daily by her cousin and uncle. She has provided no corroborating evidence of this in the form of police reports, or hospital admissions.
Despite claiming that she suffered these horrors, when she had a chance to remain in Australia when she travelled here with her friend [Ms B] in September 2015 and remained for three months, the applicant did not attempt to seek out ways that she might stay. She claims that she didn’t know anyone and didn’t know how to go about it. And yet, on her second trip she seemed to have developed a clear understanding about how to go about remaining in Australia on her own. Her account of these events was itself implausible. In any case, the applicant nevertheless returned to PNG and remained for several more months, unmolested and undetected prior to returning to Australia. The Tribunal does not accept that someone who claims to have suffered the horrors of abuse that she claims would have returned to PNG under any circumstances.
Despite being in Australia for over two years the applicant has not sought any help in the form of domestic violence counselling, for example, despite have access to RAILS. The Tribunal would have expected someone that has suffered as the applicant claims to have suffered, to have sought out and utilised the extensive and free counselling that is available to women in these circumstances in Australia. She did not.
The Tribunal has considered the letter from [the pastor] stating that the applicant is not a married woman; however in the context of all the circumstances, the Tribunal is not minded to give this document counterbalancing weight. The Tribunal notes that the applicant and [Mr C], her supporter, assert that the applicant is a truthful woman and would not deliberately deceive the government. The Tribunal notes [Mr C]’s concern, in particularly, however the evidence is clearly that the applicant declared a husband, [child], parents, siblings and children in her [temporary] visa application that she signed and submitted and which resulted in the grant of a [temporary]’s visa. Mere protestations of innocence are utterly insufficient in these circumstances, particularly as the applicant has provided no reliable evidence to the contrary and no persuasive argument as to why she would unknowingly sign a false document.
The Tribunal finds the account provided by the applicant of her reasons for departing PNG and coming to Australia to seek protection to be fabricated in its entirety.
Given these considerations the Tribunal finds remote the chance the applicant would face significant harm on return to PNG for the reasons claimed, or indeed for any reason.
CONCLUSIONS
The Tribunal finds the applicant does not have a well-founded fear of persecution on return to PNG. 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).
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).
Having found that the applicant’s account of her reasons for departing PNG and for not wishing to return are entirely fabricated, the Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
The Tribunal also finds that the applicant does not meet PIC 4020.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
A B Baker
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 639

19 February 2018

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