1723953 (Refugee)

1723953 (Refugee) [2023] AATA 1390 (8 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723953
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Nathan Goetz
DATE:8 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 March 2023 at 11:14am

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – ethnicity – ‘mixed race’ – bullying, harassment and intimidation – lack of family support, economic hardship and general security situation – country information – multiple visas, travel and returns – application made after unsuccessful application for citizenship – decision under review affirmed

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
BACKGROUND
The applicant identifies as a male citizen of Papua New Guinea born in that country in [Year] and presently located in Australia. Since 1993 he has travelled into and out of Australia on a number of occasions holding various types of visas. The applicant most recently arrived in Australia [in] March 2016 holding a visitor visa.
On 8 April 2016 the applicant applied for a protection visa. On 15 August 2017 he was interviewed by the delegate in connection with his protection claims. On 6 September 2017 the delegate refused to grant the visa on the basis that the applicant did not satisfy s 36(2)(a) or (aa) of the Act.
On 4 October 2017 the applicant applied to the Tribunal for a review of the refusal decision.
On 11 May 2021 the applicant appeared at a Tribunal hearing by audio-visual link from Queensland so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal determined that it should not decide the review favourably to the applicant on the basis of the material it had.
The applicant consented to the Tribunal hearing being held jointly with the review application for his brother, who made the same claims as the applicant: AAT case: 1723954.
The applicant was not represented for the review application. The applicant’s mother was listed as the representative on the review application form but as clarified at the Tribunal hearing, she was not a migration agent nor Australian legal practitioner. She told the Tribunal that she put herself down as the representative but understood this to mean that she was the authorised recipient for correspondence from the Tribunal.
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.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
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.
The Tribunal has considered the content of the DFAT country information report on Papua New Guinea dated 10 February 2017 and 10 September 2022.
CONSIDERATION OF Claims and evidence
Protection visa application form
The applicant identifies as a [Age]-year-old male citizen of Papua New Guinea. He was born in the town of Lae, Morobe province, Papua New Guinea. His father is a citizen of Papua New Guinea. His mother is a citizen of Australia. He can speak read and write English and Tok Pisin. He described his ethnic group as ‘mixed-race’, his religion as Catholicism, and his present occupation as unemployed. He has never married or been in a de facto relationship.
He declared that he had been refused Australia citizenship on 16 December 2015. The circumstances of the refusal were that ‘he was not eligible.’
He declared that he was raising his own protection claims. He did not claim to meet the criteria for a protection visa based on membership of the same family unit.
Concerning his protection claims, the applicant detailed that he left Papua New Guinea because ‘status is assumed by either being a chief or landowner, or if you are an expatriate of fair skin.’ The applicant claimed that public and criminal elements would assume that he had a lot of money. He claimed that due to his look, he was subject to harassment or public intimidation in day-to-day life. He claimed to have ‘no land to his name, or wealth’ but that there was an assumption that he had ‘status.’ He claimed that he was regarded as a ‘white man’ in Papua New Guinea but had no ‘perks’ that comes with that identification. He claimed that he ‘tried to fit in as well as he could,’ but that he could not fit in. He wrote that he wanted a normal life.
Concerning his fears about what would happen to him if he returned to Papua New Guinea, he wrote that he had nothing to fall back on and no family support there, as all his immediate relatives are in Australia. He claimed that there was no one to provide him with financial, emotional and personal security in Papua New Guinea. He claimed he would be subject to marginalisation and victimisation.
When asked to detail the harm he experienced in Papua New Guinea, he claimed that during his time growing up and working in Papua New Guinea, he tried to make the best of his situation but there was only so much he could take. He was called a ‘white man’ when he was growing up. He noted that he attended an international school in Fiji paid for by his father’s employer and noted that his parents’ separation made his life miserable. His father only paid the school fees until he was [age] years of age. The applicant claimed that when he went to a public school in [year], he felt alienated because of his physical features. He claimed that he was subjected to bullying during school but that he continued because he did not want his mother to worry.
The applicant was asked whether he sought help within Papua New Guinea after the harm and wrote that he was held up at gunpoint twice in 1997 and that they contacted police. He claimed that in the first instant the police did not send a patrol car around despite being requested to do so, and the second incident only resulted in the police attending the morning after. The applicant also noted that when he was working in Port Moresby in 2011 [a Workplace], he was working at was held up, but the police did not dispatch anyone there until the following day. He claimed that no action was taken by the police.
When asked whether the applicant moved or tried to move to another part of Papua New Guinea to seek safety, the applicant wrote that after he completed university, he had a clear impression that major centres would offer the applicant a better quality of life. He was working in [Town 1], but he that town was in decline, and he had no intention of staying there to work. He did not consider working in his hometown because of the ‘bad experiences’ he had there growing up. He wrote that he worked in [Town 2], in the Eastern Highlands province but moved when the friends he was staying with had to take care of their own family. The applicant detailed that he then went to work in Port Moresby at a [Workplace]. The wages were poorer, and he moved back to [Town 2].
The applicant claimed that if he was returned to Fiji, he would be harmed as he had been lucky to escape Papua New Guinea with his life. He wrote that his skin colour would not change as he grows older. He claimed that he could not relocate within Papua New Guinea because he had done so in the past without success.
In addition to this written statement, the applicant attached a statutory declaration made in August 2017, a statutory declaration made by his mother [Ms A] dated 22 August 2017, links to articles that were described as ‘supporting evidence’ and a ‘New Guinea Research Bulletin Number 23 by B. G. Burton-Bradley dated March 1968 about ‘Mixed-Race Society in Port Moresby,’ as well as ‘Extra Submissions for AAT Appeal which raised ‘Mixed-Race,’ ‘Papua New Guinea COVID concerns,’ ‘Anti-Discrimination Laws in Australia,’ and ‘Human Rights.’
The applicant provided further material to the Tribunal in the course of the review application, including a new written statement to address the ‘protection questions’ in the protection visa application form, an article by Kirsten McGavin titled ‘Measuring Mixed Race: We the Half-Castes of Papua and New Guinea’ (undated), further submissions from the applicant’s mother about ‘mixed race-people,’ ‘family,’ ‘physical features,’ ‘economic hardship’ and ‘delay lodging protection visa.’ The applicant also provided work references from employers in Australia.
Oral evidence given at the delegate interview and at the Tribunal hearing
The applicant provided oral evidence at the delegate interview on 15 August 2017 and at the Tribunal hearing on 11 May 2021. Where relevant to the Tribunal’s findings, the oral evidence is detailed in this decision record.
The Tribunal has taken into consideration the fact that the applicant’s brother also applied for a protection visa and gave evidence in support of the protection claims. The Tribunal has considered the corroboration given by the applicant’s brother and mother in support of the claims.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a refugee, or a person who meets the requirements for complementary protection. The Tribunal must also consider whether the applicant is a member of the same family unit as a person who holds a protection visa on the basis that they are a refugee or met the complementary protection requirements.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The Tribunal accepts that the applicant is a citizen of Papua New Guinea, has no citizenship of any other country, and has no right to enter and reside in a third country. The Tribunal makes this finding because there is no evidence to undermine this claim and because the applicant produced a Papua New Guinean passport in support of his protection visa application.
Therefore, the country of reference for the visa application is Papua New Guinea
Claims relating to ‘mixed-race’ ethnicity
The Tribunal accepts that the applicant is a person of mixed-race ethnicity. The Tribunal makes that finding based on its own observations of the applicant at the Tribunal hearing and because the delegate also accepted, presumably on the delegate’s own observations, that the applicant appears to be a person of ‘mixed-race’ ethnicity.
However, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Papua New Guinea due to his mixed-race ethnicity for the following reasons.
The applicant wrote about his experience growing up as a mixed-race child. He was subject to bullying about his ethnicity. While that is unfortunate, the Tribunal does not accept that because the applicant was bullied in the past as a child because of his ethnicity that means that there is a real chance of persecution in Papua New Guinea because of his ethnicity now if he returns to Paua New Guinea as a [Age]-year-old man.
As discussed at the Tribunal hearing, the Tribunal considered the DFAT country information report that was valid at the time of the Tribunal hearing. The Tribunal has also considered the subsequent DFAT country information report issued subsequent to the Tribunal hearing. None of those reports detail any harm faced by members of the population based on their mixed-race ethnicity. The Tribunal is satisfied that if there was any suggestion of risk of harm, or discrimination against a person because of their ethnicity in Papua New Guinea, there would be an assessment of this, and it would be included in the DFAT reports. The Tribunal is satisfied that there is no systematic and discriminatory conduct in Papua New Guinea based on a person’s mixed-race ethnicity.
Turning to this point, the applicant requested that the Tribunal take oral evidence from his mother. The Tribunal observed that the applicant’s mother had provided a written statement and confirmed at the Tribunal hearing that there was nothing further she wished to add that was not contained in her written statement, other than to suggest that the absence of any current reports about harm faced by ‘mixed-race’ Papua New Guineans because there weren’t any mixed-race people left in Papua New Guinea because they had migrated. The Tribunal determined that it would not take oral evidence from the applicant’s mother, given she had already provided a written statement and the Tribunal would consider its contents.
To the extent that the applicant advanced through his mother that the reason for a failure of the DFAT report to raise any protection concerns for people of mixed-race ethnicity was due to the fact that all mixed-race ethnicities had left Papua New Guinea, the Tribunal is not persuaded that is correct. If there was a migration of mixed-race ethnicities out of Papua New Guinea because of official or society discrimination against them, the Tribunal is satisfied that this would have been suggested in the relevant DFAT reports, which it was not.
Claims relating to economic opportunities, general security situation, judicial system in Papua New Guinea
The Tribunal does not accept that the applicant ‘having nothing to fall back on’ in Papua New Guinea (which he claimed was because he had no immediate family in Papua New Guinea means that there is a real risk of serious harm to the applicant in Papua New Guinea, nor that the absence of immediate family in Papua New Guinea means that there is a real risk he will suffer significant harm as defined in the Act. The Tribunal does not accept that having no one in Papua New Guinea to provide him with financial, emotional or personal security means that he is owed protection obligations.
The applicant has completed various high school certificates in Papua New Guinea and has a diploma of [Subject] from an institution in Papua New Guinea. He also completed some study in Australia. The applicant declared that he had worked in Papua New Guinea up until January 2013. The Tribunal is satisfied that the applicant will be able to subsist in Papua New Guinea. To the extent of any difficulty the applicant may possibly encounter in the job market in Papua New Guinea, or securing a place to live, the Tribunal is not satisfied that there is any impediment to this based on his race, religion, nationality, membership of a particular social group, or political opinion. Further, any difficulty the applicant may have in obtaining a new job or a place to live would be a condition faced by the population in Papua New Guinea generally.
The applicant cited a previous home invasion and attack occurring in the past. He suggested that the police in Papua New Guinea were unreliable. The Tribunal is prepared to accept that in the past there has been a home invasion and an attack previously, however the Tribunal is not satisfied that this attack has any connection to the applicant or his family’s ethnicity. Instead, the Tribunal is satisfied that the home invasion and attack could more properly be described as an indiscriminate criminal event. The Tribunal concedes that it is possible that the applicant, and indeed any person in Papua New Guinea, may be a victim of criminal activity. However, there is no evidence to satisfy the Tribunal that criminal activity in Papua New Guinea is so widespread to enliven protection obligations. The Tribunal is satisfied that, despite resource limitations of the Papua New Guinean police force, there is a police presence in that country and that it can provide adequate state protection within its resource limit. Just because there is no guarantee that the applicant will never be the victim of criminal activity does not mean that there is a real risk that he will suffer significant harm.
There was also a suggestion that the applicant’s mother had had trouble with the judicial system in Papua New Guinea. This related to child support from the applicant’s father, her experience in what appeared to be a motor vehicle accident, an adultery case, and an assault case. Those experiences do not demonstrate that there is a real chance of serious harm to the applicant because of his mixed-race ethnicity, nor do they establish that there is a real risk of significant harm to the applicant in Papua New Guinea.

There was a suggestion in the applicant’s mother’s statement that the applicant had been ‘sexually assaulted by his peers and bashed.’ The applicant did not claim, nor is there any evidence to support, that there is a real chance of serious harm to the applicant in Papua New Guinea because of a previous sexual assault or that there is a real chance of significant harm to the applicant in Papua New Guinea because of his past sexual abuse or assault.
Timing of protection visa application
The protection visa application was lodged on 8 April 2016, some 5 weeks after the applicant’s last arrival in Australia. At the time he arrived in Australia, held a visitor visa, having previously held various visitor and student visas. Immigration records demonstrate that the applicant’s mother became an Australian citizen by conferral on 29 September 2009.
On 22 June 2015 the applicant applied for Australian citizenship. This application was refused on 16 December 2016 by a delegate of the Minister. The applicant applied to the Tribunal for review of that decision and on 7 March 2016 the Tribunal refused to grant an extension of time to validly apply for review. Having listened to the audio-recording of that hearing, it became apparent that the reason the Tribunal refused to grant the extension of time was since the applicant could not meet the requirements for the grant of citizenship, namely that the applicant was not a permanent resident of Australia.
In the present review, the applicant told the Tribunal that he applied for the protection visa because he was ‘advised to do so by the previous Tribunal.’ He claimed that the Member ‘heard his story’ and advised that a protection visa was suitable for him.’ The Tribunal observes that having listened to the recording; no such advice was given.
The Tribunal observed that the applicant had travelled in and out of Australia since his initial arrival in Australia on a tourist visa in 1993. The Tribunal queried why the applicant would depart Australia and return to Papua New Guinea multiple times if there was a real chance of harm to him due to his ethnicity. The Tribunal also queried why the applicant would not lodge protection visa applications when he returned to Australia in during the four times, he returned to Australia between 1995 and 2011, and the four times he returned to Australia between 2013 and 2015.
The Tribunal was told that this was because of ‘how the family unit was set up.’ But the family had slowly migrated to Australia, and that the applicants did not know about protection visa applications. The Tribunal was told that the applicant had exhausted all available options before lodging the protection visa. The Tribunal observed to the applicant the fact that because no attention had been made to explore protection visas prior to the Tribunal hearing concerning the citizenship application may suggest that the applicant did not have a well-founded fear of persecution. The Tribunal reasoned that if a person did have such a fear, they would take steps to find out about protection visas, rather than returning to their home country. The Tribunal was told that these steps were not taken in the belief that the applicant would be eligible for citizenship. It was also suggested that perhaps the applicant did not believe that they would be entitled to protection, as Papua New Guinea was not ‘war torn.’
The Tribunal observed that, given the applicant’s mother became an Australian citizen in 2009, and the applicant had applied but unsuccessfully sought Australian citizenship, this history may demonstrate that the applicant wanted to live in Australia with his mother for reasons not connected with Australia’s protection obligations; Having that hoped dashed concerning the citizenship application, it may be that the applicant lodged the protection visa application not because there was a real chance of serious harm to the applicant in Papua New Guinea due to his ethnicity, but as a means to remain in Australia with his mother. The Tribunal was told that that was not the case because in the application for citizenship the ‘plight and fears’ were listed in the citizenship application and that the fears were genuine.
CONCLUSION
The Tribunal does not accept that there is systematic and discriminatory conduct in Papua New Guinea against people who are mixed-race. No corroborative evidence has been provided to suggest that this conduct exists.
The Tribunal does not accept that the applicant will be unable to subsist in Papua New Guinea.
The Tribunal does not accept that the police or security forces in Papua New Guinea will deliberately withhold protection to the applicant. Any deficiencies in the detection and protection of crimes (in the event that the applicant was a victim of crime in the future) are a question of resourcing. The Tribunal does not accept that the material presented demonstrates that the security situation in Papua New Guinea is so dire to mean that the applicant faces a real chance or real risk of harm for reasons of his ethnicity or any other reason. The Tribunal is not satisfied that the security situation in Papua New Guinea means that there is a real risk the applicant will be arbitrary deprived of his life, subject to the death penalty, torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Papua New Guinea due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Papua New Guinea, there is a real risk that the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and holds a protection visa.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
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.
…

[2023] AATA 1390

8 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Res Judicata

Statutory Construction