1800082 (Refugee)

1800082 (Refugee) [2020] AATA 5891 (16 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1800082
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Christopher Smolicz
DATE:16 December 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 December 2020 at 4:57pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – imputed political opinion – family’s and tribe’s political activity – fear of electoral violence – particular social group – male member of families targeted for retributive tribal violence – cultural practice of payback violence – tribal land disputes – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 116, 499
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
GLD18 v MHA [2020] FCAFC 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 Immigration and Border Protection on 12 December 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 on 20 April 2017.
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.
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 (DFAT) Country Information Report Papua New Guinea 10 February 2017 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Relevant country information is detailed in the attachment to this decision. The Tribunal has also had regard to country information referred to by the applicant in post hearing submissions dated 2 December 2020.
Issue
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds because he fears:
·     electoral violence
·     tribal violence associated with land disputes in [Province 1]
·     people will be jealous and vengeful because he is an educated person who has been living in a western country
·     people will be jealous and vengeful because he has a ‘white’ Australian partner and child with her
·     he has brought shame and embarrassment to his family, community and tribe because he has spent time in custody in Australia.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [age]-year-old man from [Village 1], [Town 1], [Province 1] of Papua New Guinea (PNG). He arrived in Australia [in] February 2010 on a [Student] visa. The visa was valid to 15 March 2015. He travelled to Australia on a PNG passport. The Tribunal has assessed the applicant’s claims against PNG as the receiving country.
The applicant provided the Tribunal with a copy of the delegate’s decision which provides the following summary of his migration history since he arrived in Australia.
[date]/09/2012            Departed Australia travelled to [Country 1]
[date]/10/2012            Arrived in Australia on [student] visa
30/12/2013      [student visa] cancelled
04/12/2015      [Partner] visa lodged
30/04/2015      [Partner] visa refused
20/05/2015     Applied for review of Partner visa refusal
30/09/2015     Review of Partner visa refusal affirmed
30/10/2015      Ministerial Intervention - s351 lodged for Partner visa refusal
28/03/2017     [Partner] visa Ministerial Intervention Outcome - Not Considered
20/04/2017      Protection (XA 866) lodged
12/12/2017     Protection (XA 866) visa refused
02/01/2018     Applied for review of Protection visa refusal
21/01/2020     Bridging Visa A cancelled under s.116(1)(e)(ii) on the basis that the applicant’s presence in Australia was a risk to the health or safety of an individual or individuals.
11/02/2020     Applied for review of Bridging Visa A cancellation
09/06/2020     Review of Bridging Visa A cancellation affirmed
Summary of substantive claims
The applicant made the following claims for protection.
He fears returning to PNG because of the 2017 national elections (electoral violence) which started in May 2017.
There are political enemies in his home region ([Province 1]) and tribal violence is easily triggered during elections.
If he returned to PNG during the election period he would be at risk of harm or severe injury, and this could possibly be fatal.
In the Highlands regions, there has been a history of civil disorder and tensions between opposing candidates and supporters. He knows this because his mother works as a [Occupation 1] for the PNG Government.
He feared returning to his home in [Province 1] due to a land dispute in his clan that resulted in an injury to one of his siblings when locals tried to claim his grandfather’s ([named]) land after his death in 2016.
The applicant claims his grandfather left land to him and his brothers. The land was given and not inherited and contains his home and farmland. The land legally becomes theirs after years of occupancy, but the locals are wanting to claim the land back.
He could not easily live in another part of PNG as it is a small country, and it is possible that political and tribal tensions could follow him in PNG.
He could be a potential target to any candidate and their supporters that may have been involved in incidents from previous elections with his tribe or clan, given his surname and ‘family status’ in the community.’
His family name has been a ‘target’ for several years and his tribe has ‘natural enemies and political rivalries’, and this creates a ‘vulnerable state’ for his family in PNG.
He would ‘stand out’ in his home region in PNG as he was ‘exposed to the western world’, received [Occupation 2] training overseas, lived in a good country such as Australia, and he had a ‘white partner’ and had a child with her. He would be hated by tribal, political and business enemies.
He claims that men who are exposed to the developed world and which have the potential to be significant in the future of the community can be targeted by their enemies. He claims that the ‘prestige’ he holds will make him a target of his family’s enemies.
During the 2007 national elections, fighting from supporters of a losing candidate ([Mr A]) affected his travel to school as the supporters set up roadblocks and abused and harassed people travelling from his electorate into town. [Mr A]’s supporters accused a member of the applicant’s electorate ([named]) of not voting for him. His mother was beaten up and his ‘cousin sister’ was raped.
They could not seek help and along with his mother and younger siblings, he relocated in 2007 from [Town 1] to Port Moresby where the other half of their family were living. There was still unrest due to tribal differences and they constantly had to watch out for their lives. The applicant and his siblings stayed and finished high school in Port Moresby.
During the 2012 national elections, a losing candidate from his tribe ([Mr B]) caused ‘a huge tension’ with his family, and he was advised not to return during that time. The applicant claims his family was specifically targeted and his uncle’s vehicle was burnt and the driver, also a family member was hospitalised.
He heard that there was still jealousy and hatred from [Mr B’s] people, and the issue would ‘eventuate again’ from the candidate’s supporters during the 2017 election even though the candidate may not contest the elections.
He feared his family’s political, tribal and business enemies; they could lie in ambush, or pay people to harm him in Port Moresby or in [Province 1].
With limited police officers, it would be difficult for the authorities to protect him during the election period. The authorities have not taken action in regard to his brother’s injury in the land dispute.
He has a partner and [child] to look after in Australia and returning to PNG would jeopardise his future with his family in Australia.
The applicant attended a Protection visa interview on 20 October 2017. The applicant’s mother provided a statement in support of the protection visa application. The Tribunal was also provided with a number of reference letters from members of his community.
The applicant took part in a video hearing before the Tribunal on 26 November 2020. On 2 December 2020 the applicant provided the Tribunal with post hearing submissions in support of his claims for protection, [Social Media 1] chat records and country information which was referred to in an unrelated AAT decision.[1]
[1] 1721044 AATA 2231 (11 March 2020)
Tribunal hearing and post hearing submissions
The applicant described his ethnicity as Melanesian and his religion as Seventh Day Adventist Christian. He comes from [Tribe 1] which is made up of [number] clans. His family comes from [Clan 1].
He was born in [Province 2] but grew up with his family living in [Province 1]. In 2007 his family relocated to Port Moresby where the applicant completed his schooling and commenced to study a Bachelor [degree]. His parents separated when he was a young child. His father worked as an [Occupation 3] and his mother works as a [Occupation 1] for the PNG [Government].
He has [number] siblings – [number] living in Port Moresby and one brother ([named]) who is living in [Village 1] in [Province 1].
He arrived in Australia [in] February 2010 as an international student. He was sponsored to travel and [study] by an Australian based [company]. He said at the hearing that he was able to secure the sponsorship because of his father’s connections with the company CEO ([named]). In about 2012 or 2013 the sponsorship ceased, and he did not complete his studies in Australia. In about 2016 undertook some [specified training] but does not have a [related Occupation 2] licence. He has worked as a [contractor] in Australia.
In September 2012 he travelled to [Country 1] for a holiday to [location] and returned to Australia.
In about 2012 he formed a relationship with an Australian citizen ([Ms C]) and applied for a partner visa. [Ms C] and the applicant have a [child] who was born on [date].
On 30 April 2015 the partner visa was refused by the Department and in September 2015 the AAT affirmed the Department’s decision. The applicant told the Tribunal the partner visa was refused because he could not afford to pay for a medical report to satisfy the health criteria. The Tribunal notes however that the visa was refused because the applicant did not hold a substantive visa at the time.
The applicant said that [Ms C] had a history of [specified health conditions]. The applicant said he did not get along with [Ms C]’s mother and she had taken out apprehended violence orders against him in the past.
The applicant and [Ms C] do not have custody of their child. In November 2015 the Children’s Court of New South Wales made an order that all parental responsibility for the child was allocated to [Ms C]’s sister and her partner until the child attains the age of 18 years. The applicant and [Ms C] are entitled supervised monthly visits.
The Tribunal finds that the mother of the applicant’s child is an Australian citizen. The child acquired Australian citizenship at birth. The Tribunal explained to the applicant the issue in this case is whether he meets the refugee criteria or complementary protection criteria in circumstances where his child is not an applicant before the Tribunal. The applicant said he understood the situation regarding his child.
The Tribunal questioned the applicant about why he was seeking protection in Australia. The applicant said that growing up in PNG he experienced tribal tension and political unrest which was triggered by elections. The applicant referred the Tribunal to the following examples of electoral violence.
In 1997 when he was in year [number] attending schooling in [location], there was a general election. His grandfather’s brother (the late [Mr D]) stood for the same regional [Province 1] seat as [Mr A]. At the time he would travel to school by bus and [Mr A]’s people would make roadblocks and stop the bus. On one occasion the bus was stopped and he experienced psychological trauma and shock when his cousin-sister was sexually assaulted. The applicant said these incidents have left him traumatised. The Tribunal referred the applicant to his statement of claim (question 91) and noted that he said that this incident occurred in 2007. The applicant maintained the incident occurred in 1997.
The applicant said that historically his smaller [Tribe 1] tribe was ethnically cleansed and lost their land. The applicant said that during the 2002 national elections there was tribal violence and his family experienced problems from the larger rival [Tribe 2] when [Mr D] contested the regional seat of [Province 1]. The applicant, his mother and younger siblings were stopped at a roadblock by [Mr A]’s supporters when travelling home from [Town 1] to their village. Someone threw an axe at the bus, people were injured and they were lucky not to sustain serious injuries.
In post hearing submissions the applicant detailed an incident that occurred in 2006 when he was [age] years old attending high school and living in [Mr E]’s (the late [Mr D]’s son) family home in [location]. He was travelling on public transport when returning to [Province 1]. He was confronted by a person from [Tribe 3] who associated him with [Mr E] and [Mr D] and his father. The person asked if he was going to take the land back and pulled a knife on him. The applicant said he was young at the time and did not understand the nature of the dispute.
At the hearing the applicant said he could not travel to school at this time because it was dangerous, and his family moved to Port Moresby where he joined them in about [2007]. He kept a low profile and was able to finish his studies at the [named university] in Port Moresby. His family has remained in Port Moresby since this time. In about 2008–2009 he completed two years of his [Bachelor] degree. His father worked [as an Occupation 3] in Port Moresby and it was his grandfather’s brother who was involved in politics. The applicant said the tension still remained.
During the 2007 national elections [Mr E] was contesting a seat that was also being contested by a person called [Mr B] who was a candidate from his tribe. [Mr B’s] supporters threatened his family with rifles. [Mr B] lost the elections and that caused tension and division in the tribe and his uncles and cousins were hospitalised.
In post hearing submissions the applicant said that during the recent 2017 elections many of [Mr B]’s clansmen and supporters were sent to [prison]. He claims the men were released from prison soon after being detained and he believes they were released because they bribed the authorities.
The Tribunal referred the applicant to the land dispute settlement legislation in PNG (Land Disputes Settlement Act 1975) which creates a three-tier mechanism of dispute resolution: mediators; Local Land Courts; and an appeals process. The applicant said he was aware of the legislation but in reality, it was difficult to enforce when someone has been occupying land for many years.
The Tribunal noted that when the applicant lodged his claims for protection he was in fear of violence as a result of the 2017 elections. The Tribunal noted that the elections were over, and it must assess his claims looking to the reasonably foreseeable future.
The Tribunal also noted that tribal disputes he referred to were in the Highlands and that he and his family have been living in Port Moresby since 2007. The Tribunal noted that Port Moresby has an international business community. The Tribunal noted that [number] of his siblings, his mother and father lived in Port Moresby. The Tribunal noted that his mother worked as a [Occupation 1] in Port Moresby and said she would keep him safe. The applicant said his mother would be able to do little to keep him safe because she was a [Occupation 1] and she was speaking as a mother. The Tribunal asked the applicant if his brother had experienced any problems. The applicant said his brother did not experience any problems because he was not educated and was not considered a threat. The applicant maintained that if he returned to PNG he would live in [Town 1] where his brother lived.
The Tribunal asked the applicant to explain why his relationship with [Ms C], an Australian citizen would be a problem for him if he returned to PNG. The applicant said that having a child and being in a relationship with a “white” western woman was seen as a symbol of status and people would be jealous. The applicant said people would also be jealous of him because he has been living in Australia for 10 years and is educated. The applicant said [Ms C] would not return to live permanently in PNG.

The Tribunal questioned the applicant about the delay in lodging his protection visa application. The applicant said that he felt that he did not need to apply for protection because he wanted to finish his studies and obtain work in Australia or overseas. He felt safe because he had a visa. He said he was stressed because [Ms C]’s first child was lost at birth and FACS took his second child away in January 2015. In post hearing submissions the applicant said the delay in him applying for a protection visa needed to be viewed against the following background, setbacks with the student visa sponsorship, his partner’s mental health and pregnancy, the impact of financial hardship on his partner visa application, difficulty he and [Ms C] had finding accommodation in Australia, loss of his first child, and the involvement of FACS removing their child, lack of awareness of the protection visa process and because he was focussed on getting custody of his child.
The applicant said he was not involved in politics in PNG. In post hearing submissions when discussing inner tribal tension, the applicant wrote “as an individual I am choosing not to be part of a life or system that will cause harm, threat, danger and death to my life. As much as I love my family, culture and people, I need to live safely not in a country where I will be persecuted, targeted and killed.”
The Tribunal asked the applicant to explain social media posts he provided the Tribunal. The applicant said that his clan communicates using [Social Media 1]. He said there was a land dispute and they were negotiating and needed to raise funds to pay compensation to the larger tribe because his tribal land was “ethnically cleansed”. The Tribunal observed that the negotiations appeared to be a positive indication of co-operation. The applicant said he agreed but the situation could change. In post hearing submissions he said it is highly unlikely [Tribe 3] will easily part with the land.
In post hearing submissions the applicant referred the Tribunal to the [Social Media 1] chats and said that there are strong indications of tribal fighting happening in his hometown. He said that although the tension may lay dormant, it is usually triggered by major events like PNG general elections, disputes over land and pigs and accidents resulting in the deaths of members of different tribes.
He claims what is most terrifying for him is that most of his immediate family and cousins are the main instigators for the removal of remaining enemies. Even though he is not involved in any way he is still [Tribe 1] and will be “automatically considered part of the push” and imputed as taking the enemy’s land.
In post hearing submissions the applicant provided further details regarding injuries sustained by members of his tribe and clan due to political, tribal and land disputes from 1997 to 2016.
The applicant referred the Tribunal to the culture of “paybacks” that exists in the PNG Highlands and corruption within the police system.
Well-founded fear of persecution
The Tribunal finds that the applicant grew up in [Village 1], [Town 1], [Province 1]. He is from the [Tribe 1] tribe and the [Clan 1] clan.
The Tribunal has had regard to country information set out in the attachment to this decision and accepts that elections in PNG can be a trigger for violence. The Tribunal accepts the applicant’s accounts that during the elections held in 1997, 2002 and 2007 he witnessed electoral violence growing up in [Province 1]. The Tribunal notes the applicant was in Australia during the 2012 and 2017 national elections. The next national elections in PNG will be held in 2022.
The Tribunal accepts that his grandfather’s brother, the late [Mr D] and his son [Mr E] were involved in regional politics in [Province 1]. The Tribunal accepts the applicant’s account that during the 2007 elections there was tribal tension when [Mr E] contested the regional seat against a fellow tribe member and his family relocated to Port Moresby.
The Tribunal has had regard to country information referred to by the applicant and accepts that clan violence has been a consistent and widespread fixture in the PNG culture. Hundreds of people are killed every year in tribal fights in PNG. Reports have estimated that around 20% of the population is affected by ostensibly ‘tribal’ violence, with a marked concentration in highland regions. Guns have now supplanted more traditional weapons in such conflicts, thus raising their stakes and increasing their deadliness.[2]
[2] 1 IRIN, Papua New Guinea: Tackling clan conflict, 7 January 2011, available at:
>
In assessing whether there is real chance the applicant would experience electoral violence and/or tribal violence if he was to return PNG the Tribunal has also considered country information prepared by DFAT which states that tribes from the Highlands have carried on tribal violence in other parts of the country including Port Moresby.[3] The Tribunal must however look at the applicant’s particular circumstances, the reasons behind the tribal violence and his family’s individual circumstances.
[3] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 5.6.
The Tribunal has also taken into consideration past episodes of electoral violence and tribal violence experienced by the applicant, his family and tribe as relevant background when assessing whether there is a real chance or real risk the applicant will be exposed to serious harm / significant harm if he returns to PNG in the reasonably foreseeable future.
In post hearing submissions the applicant claims it will not be possible for him to relocate within PNG to avoid persecution as there is a real chance, he will face persecution in all areas of the country. He also claims that if he returned to PNG he would live in [Province 1].
Tribal violence – [Province 1]
The Tribunal has had regard to the applicant’s evidence and does not accept his claim that if he returned to PNG he would return to live in [Province 1]. The applicant has not lived in [Province 1] since 2007. The applicant has now been living in Australia for over 10 years and has had no personal involvement in any of the tribal land disputes in [Province 1]. The Tribunal finds that if the applicant returned to PNG he would settle in Port Moresby.
The Tribunal finds that the applicant and his family left [Province 1] in 2007 when the applicant was [age] years old. His family relocated to Port Moresby where the applicant completed his [schooling] and studied a [Bachelor] degree at university. He was able to complete his schooling and university studies in Port Moresby without being subjected to electoral violence or tribal violence.
In assessing the applicant’s profile, the Tribunal further finds that he has never personally been involved in politics in PNG. The Tribunal finds that the tribal and electrical violence the applicant fears is based in [Province 1] and not in Port Moresby. The Tribunal finds that there is no evidence the applicant and his family have experienced, ‘paybacks’, politically motivated violence or tribal violence in Port Moresby since they left [Province 1] in 2007.
The Tribunal finds the applicant obtained a scholarship from an Australian [company] based in Port Moresby through family connections. He travelled to Australia on a student visa in February 2010 as a fully funded international student. The Tribunal finds that the applicant did not depart Port Moresby because he was escaping electoral violence or tribal violence.
The Tribunal has considered the applicant’s claim of current tribal tensions in [Province 1] and social media ([Social Media 1] – screenshots). The applicant referred the Tribunal to his tribe’s intention to settle in the [named] traditional lands. The Tribunal has had regard to the social media records between the applicant’s clan members regarding attempts to negotiate the land dispute by paying compensation to the rival clan.
The Tribunal has had regard to country information and accepts that tribal tension in PNG may lay dormant and be triggered by elections and land disputes and the accidental deaths of rival tribe members. The Tribunal notes that when questioned at the hearing the applicant conceded that the negotiations were a positive development but claims things could change. Reports also confirm that long standing tribal conflicts can be peacefully settled. For example, reports confirm that in 2002 the Western Highlands Muntika [Munjika] tribe paid the Kopilga tribe K100,000, and 50 pigs and in 2004 it paid the Komka tribe K150,000 and 40 pigs. In 2012 the Muntika and Giplga tribes ended a 32-year conflict and made peace.[4]
[4] Western Highlands tribes end 32-year conflict - The National
There is no evidence before the Tribunal that the current negotiations regarding the applicant’s traditional lands have escalated to a violent conflict between rival clans. The Tribunal finds that it is mere speculation to suggest that the current negotiations will become violent and the applicant will be drawn into a violent the tribal land dispute if he was to live in Port Moresby in the reasonably foreseeable future.
Further, as discussed with the applicant at the hearing, PNG has legislation aimed at resolving land disputes - the Land Disputes Settlement Act 1975.[5] The Act creates a three-tier mechanism of dispute resolution: mediators; Local Land Courts; and an appeals process.[6]
[5] Cooter, R D 1991, ‘Inventing Market Property: The Land Courts of Papua New Guinea’, Law & Society Review, vol. 25, no. 4, p. 781 < <CIS23EDB30454>
[6] Oliver N & Fingleton J 2008, ‘Settling Customary Land Disputes in Papua New Guinea’, Making Land Work Volume 2: Case studies on customary land and development in the Pacific, Australian Agency for International Development, June, p. 228 < 2016 <CIS956B8881589>
The Committee of Inquiry into Land Matters, whose 1973 recommendations informed the creation of the Act, emphasised the need for the resolution process to be localised. According to a 2005 article in Melanesian Law Journal, the Committee decided that the aim of the dispute settlement process ‘must not necessarily be to determine who owns the land, but consideration should be given to its use’.[7]
[7] James, R W & Kalinow, L 2005, ‘Resolving Customary Land Disputes Settlement’, Melanesian Law Journal, no. 30,
Mediators are the first step in attempts to resolve land disputes under the Act. They are locals who are knowledgeable in the relevant customs.[8] If an agreement is reached, mediators are required to formalise it by sending a copy of the agreement to the Local Land Court.[9] According to James and Kalinow, more than half of all land disputes are successfully resolved through such mediation.[10]
[8] Cooter, R D 1991, ‘Inventing Market Property: The Land Courts of Papua New Guinea’, Law & Society Review, vol. 25, no. 4, p. 781 < Accessed 27 May 2016 <CIS23EDB30454>; James, R W & Kalinow, L 2005, ‘Resolving Customary Land Disputes Settlement’, Melanesian Law Journal, no. 30, PacLII, < James, R W & Kalinow, L 2005, ‘Resolving Customary Land Disputes Settlement’, Melanesian Law Journal, no. 30, PacLII, < <CIS9BE2467781>
[10] James, R W & Kalinow, L 2005, ‘Resolving Customary Land Disputes Settlement’, Melanesian Law Journal, no. 30, PacLII, < <CIS9BE2467781>
The second tier provided by the Act is the creation of Local Land Courts. These have jurisdiction in customary law only. A Local Land Court is staffed by a magistrate and either two or four mediators. Unlike Western courts, the Local Land Court does not necessarily decide in favour of one claim against another; it can determine compromises.[11]
[11] James, R W & Kalinow, L 2005, ‘Resolving Customary Land Disputes Settlement’, Melanesian Law Journal, no. 30, PacLII, < <CIS9BE2467781>
The third tier provided by the Act is a process of appeals, first to the Provincial Land Court (which examines the written record of Local Land Court and may call additional witnesses) and then the National Court (Papua New Guinea’s highest court), which does not decide customary law, but principally determines whether the lower land courts abided by their statutory mandate.[12]
[12] Cooter, R D 1991, ‘Inventing Market Property: The Land Courts of Papua New Guinea’, Law & Society Review, vol. 25, no. 4, p. 782 < <CIS23EDB30454>
The Tribunal finds that the above options of resolving the land disputes are available to the applicant’s clan if he returns to PNG in the reasonably foreseeable future.
The Tribunal is not satisfied that there is a real chance that the applicant would face serious harm if he was to return to Port Moresby because of his tribal origin (race), tribal land disputes (membership of a particular social group – male member of families targeted for retributive tribal violence).
Electoral violence
In assessing the applicant’s claim that he fears electoral violence the Tribunal notes that when he applied for protection (20 April 2017) he declared “there are a few current situations that will affect my safety and wellbeing should I return immediately to PNG. The first and most important of all is the National Elections of Papua New Guinea which starts this month in May 2017.”
In post hearing submissions the applicant referred the Tribunal to the practice of ‘paybacks’ and submitted that country information supports his claim that the tribal conflict was re-ignited by the 2017 elections and will continue to be re-ignited in the next elections [2022] causing him serious fear for his safety if forced to return to PNG.
The Tribunal has had regard to country information and accepts that elections in PNG can be a catalyst for politically motivated violence and a cause of tribal disputes. The Tribunal notes however that it is unclear who will be contesting the 2020 National elections, what impact this will have on candidates in [Province 1] or who will win the election. The Tribunal finds that it is mere speculation that the applicant will face serious harm or significant harm in the period surrounding the next National Elections if he returns to PNG in the reasonably foreseeable future.
The Tribunal finds that the 2017 elections were held from 24 June 2017 to 8 July 2017.[13] The elections were marred by violence among voters and rival clans in the Highlands.[14] Reports confirm about 204 deaths and that hundreds of people were seriously injured.[15]
[13] IPU PARLINE database: PAPUA NEW GUINEA (National Parliament), Last elections
[14] PNG election: Chaos and colour as Papua New Guinea votes – ABC News
[15] Unprecedented violence and fraud ‘hijacked’ 2017 PNG election – report | World news | The Guardian
In post hearing submissions the applicant claims that during the 2017 elections many of [Mr B]’s clansmen and supporters in [Province 1] were arrested and sent to [prison]. He believes they were released prematurely and suspects this was because the police were bribed. He fears their release will pose a threat to his tribe.
The Tribunal finds the applicant’s evidence about the reasons for the release of [Mr B’s] clansmen and supporters vague and speculative. No information was provided to verify if the suspects were released because bribes were paid or if they were released on bail pending trial. The Tribunal further finds that the evidence of the arrests by the police demonstrates that the authorities in PNG did take action against [Mr B’s] clansmen and supporters and it therefore seems unlikely in the circumstances they would be released without charge.
The applicant declared in post hearing submissions that since [Mr B] was not successful in the elections his clansmen and supporters are now ready to harm his family or clan members (payback). The Tribunal notes however that the applicant did not provide evidence at the hearing that his family or clan have been directly harmed as a result of the 2017 elections. No evidence was provided about the impact of electoral violence on the applicant’s father, mother or siblings who reside in Port Moresby or why he fears harm from business enemies. The Tribunal also notes that when questioned at the hearing the applicant said that his [brother] lives in the Highlands and has not experienced any recent violence.
The Tribunal is not satisfied that there is a real chance that the applicant would face serious harm if he was to return to Port Moresby because of past or future electoral violence or because of his imputed political opinion due to his family’s and tribe’s political activity in [Province 1].
Educated person who has a child with Australian Citizen
The Tribunal has also considered the applicant’s claims that he would be harmed if he returned to PNG because he is educated and in a relationship with [Ms C] and they had a child. The Tribunal finds the claim to be speculative and vague. The applicant will not be returning to PNG with his [child] due to the current court orders and there is no suggestion that [Ms C] would relocate to PNG if the applicant departed Australia.
As discussed with the applicant at the hearing Port Moresby is a large city with educated, professional people from many parts of the world and the headquarters to [large] companies, such as the Australian company that sponsored the applicant to study in Australia.[16]
[16] [Source deleted]
The Tribunal is not satisfied that there is a real chance the applicant would suffer serious harm if he returns to PNG because people will be jealous and vengeful of him because he is an educated person who has been living in a western country or because he has a ‘white’ Australian partner and child with her.
Time in remand
The applicant also claims that because he was remanded in custody in Australia for 22 months this will have an impact on him if he returns to PNG because it will bring shame and embarrassment to his family, community and tribe. The applicant did not provide details of the reasons for his remand or the outcome of any associated legal proceedings. He provided evidence at the hearing that in the past he has not got along with [Ms C]’s mother and this has resulted in the court granting an AVO. The Tribunal accepts that it may well be the case that his period in remand in Australia will bring some embarrassment to his family and tribe. The Tribunal does not however find this would amount to serious or significant harm.
Delay in applying for protection
In assessing the applicant’s fear of harm in PNG the Tribunal has also considered the significant delay of over 7 years in the applicant applying for protection after he arrived in Australia in February 2010. The Tribunal has had regard to the applicant’s submissions explaining the reasons for the delay in his protection visa application. The Tribunal accepts the applicant has experienced family and relationship difficulties since he arrived in Australia due to his partner’s mental health and court orders regarding the guardianship of his [child]. The Tribunal accepts these issues would have caused him emotional stress and been the focus of his attention at the time. The Tribunal also notes the applicant was able to make personal choices to travel to [Country 1] for holidays in September 2013. The Tribunal finds his student visa was cancelled in December 2013 and since January 2015 he has been the holder of a temporary bridging visa.
The Tribunal would have expected that his temporary and uncertain visa status in Australia would have been a strong incentive for him to make enquires with the Department or seek migration advice and apply for protection if he had a fear of persecution in PNG.

The Tribunal finds that the significant delay in the applicant applying for the protection visa is a relevant consideration in assessing the applicant’s fear of persecution in PNG.
Conclusion
Having considered the applicant’s claims individually and cumulatively the Tribunal is not satisfied that there is a real chance that the applicant would face serious harm if he was to return to Port Moresby because:
·     of past or future electoral violence
·     his imputed political opinion due to his family status and name and involvement in politics
·     his tribal origins and tribal land disputes
·     he is educated and in a relationship with an Australian citizen with whom he had a child
·     he has spent a period in remand in Australia
·     he fears harm from political, family and business enemies.

100. The Tribunal finds the applicant’s fear of persecution is not well founded.
101. 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).
Complementary protection
102. 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).
103. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of well-founded fear’ in the Refugees Convention: MIAC v SZQRB [2013] FCAFC 33.
104. As detailed above the applicant claims it will not be possible for him to relocate within PNG to avoid persecution as there is a real risk he will face persecution in all areas of the country.
105. The first qualification under s.36(2B) is that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Tribunal 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’: s.36(2B)(a).
106. Before moving to the question of reasonableness and practicality of relocations, the Tribunal has considered whether there is another part of PNG where the applicant would not face a real risk of significant harm. For the reasons detailed above the Tribunal finds that the risk of harm from electoral violence tribal land disputes is localised in [Province 1]. According to country information referred to above about 20% of the population of PNG is affected by ostensibly ‘tribal’ violence, with a marked concentration in highland regions.[17] The applicant’s tribal lands are located in [Province 1]. The Tribunal finds the applicant would not face a real risk of significant harm in Port Moresby.
[17] 1 IRIN, Papua New Guinea: Tackling clan conflict, 7 January 2011, available at:
Port Moresby is Melanesia’s largest city and PNG’s most populated area. Former Prime Minister and Governor Bill Skate describes Port Moresby as “a unique province, for people from every other of PNG’s 19 provinces lives here… The location of the Government in Moresby created a boom in office and housing construction. The government payroll gives NCD the steadiest economy in PNG. It can look to the future with a big oil refinery at Motukea Island in Fairfax harbour, a new ship-building yard and a container wharf. It is perhaps fitting that Moresby still looks to the sea. For the sea was as important in the past as it will be in the future.”[18]
[18] National Capital District - Port Moresby - Destination PNG
108. For the reasons detailed above the Tribunal is not satisfied that there is a real risk the applicant would face significant harm if he was to relocate to Port Moresby because he is an educated person, who is in a relationship with an Australian citizen with whom he has a young child.
109. The Tribunal finds that there is no evidence the applicant and his family have experienced paybacks, politically motivated violence or tribal violence in Port Moresby. His family in Port Moresby has not experienced any harm associated with the land dispute negotiations. As detailed above the Tribunal finds it is mere speculation that the applicant would face harm in Port Moresby because of the next national elections to be held in 2022. The Tribunal finds that that current negotiations regarding his tribal land in [Province 1] have not escalated to violence and there are positive signs of dialogue and payment of compensation to the rival clan.
110. As detailed above the Tribunal finds that the applicant and his family left [Province 1] in 2007 when the applicant was [age] years old. His family relocated to Port Moresby where the applicant completed his [schooling] and studied a [Bachelor] degree. His mother, father and [number] siblings have continued to reside in Port Moresby since 2007. His family’s connections in Port Moresby enabled him to obtain a scholarship to travel and study in Australia as an international student. The Tribunal finds that his family connection in Port Moresby would provide him with a strong foundation to find suitable employment in the future.
111. The Tribunal finds the applicant’s mother will continue to provide him with support despite the fact he has spent time in remand in Australia. In making this finding the Tribunal has considered evidence of the applicant’s mother where she states “As a mother and [Occupation 1], I am obliged to keep my son safe.” In all the circumstances, the Tribunal finds it is reasonable and practical for the applicant to relocate to Port Moresby where he can live with his mother who is working as a [Occupation 1] with the [PNG government].
112. The Tribunal has also considered the applicants claims of harm arising from separation from his [child] and partner in Australia. The Tribunal finds that the act of removal of the applicant from Australia cannot itself be characterised as significant harm under s.36(2)(aa).[19]
[19] GLD18 v MHA [2020] FCAFC 2
113. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
114. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
115. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
Member

ATTACHMENT
DFAT Country Information Report Papua New Guinea 10 February 2017
Demography [2.5]
PNG’s most recent census in 2011 resulted in a population count of 7.25 million, an increase of 40 per cent from the last population census in 2000. Since 2001, the population has grown by a rate of around 2.3 per cent to approximately 7.5 million. PNG has a heavily ruralised population, with only 15 per cent of its total population living in urban areas. PNG’s capital and largest city is Port Moresby, which has a population of around 345,000. Other main regional centres are Goroka and Mt Hagen in the densely populated Highlands region, the commercial port of Lae, and Kokopo/ Rabaul in East New Britain. Though each is diverse, PNG is often informally broken down into ‘Highlands’, ‘Islands’, and ‘Coastal’ regions.
The indigenous population of PNG is one of the most heterogeneous in the world. PNG is home to hundreds of ethnic, communal, tribal or clan (‘wantok’) groups, many with their own languages.
Tribal Violence [2.36 2.39]
Tensions between and within PNG’s hundreds of different groups occurs frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.
Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country’s population. Conflicts between various groups are complicated by grievances over access to royalties, benefits, and compensation associated with resource extraction projects in the country, whether mining, gas extraction or logging. DFAT is aware of cases in recent years where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby.
Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs. In December 2014, the Internal Displacement Monitoring Centre estimated there were about 22,500 people displaced within PNG because of tribal warfare (and natural disaster). In particularly serious cases, provincial authorities may request the deployment of the Papua New Guinea Defence Force (PNGDF) and/or the Royal Papua New Guinea Constabulary (RPNGC) Mobile Squads. These forces are known for taking a blunt approach to restoring security, including through burning villages and holding village leaders for ransom until perpetrators have given themselves up.
The Inter-group Fighting Act (1977) prohibits inter-tribal fighting. Section 11 (2) of the Act provides for a punishment of between three and six years’ imprisonment where a person has taken part in inter-tribal fighting that has resulted in death. Section 11 (3) of the Act provides for a punishment of between 20 to 30 years’ imprisonment if a Court determines that an individual is a principal offender or a leader of a fight that results in death. While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they will be subjected to ‘payback’ violence …if they testify.
Payback and traditional ‘compensation’
‘Payback’ is an act of retaliation that is usually carried out when one group has been harmed by another. In many cases, the perpetrator pays financial or other compensation to the victim or their family. This focus on payback and traditional ‘compensation’ means that female or child victims of sexual assault and domestic violence can be discouraged from seeking the assistance of police or the courts. The practice of payback can lead to impunity from mainstream court processes. Many payback cases are not reported, and witnesses are often reluctant to testify out of fear of retaliation from within the group. Traditional compensation via payback is often preferred because it produces immediate benefits and prevents a cycle of escalating ‘tit-for-tats’.
Political Opinion (Actual or imputed) [3.17 – 3.22]
Tribal, linguistic, geographic, or personal ties drive political loyalties in PNG more than shared ideology does. Many candidates run as independents and align with parties after they are elected. ...
Elections are held every five years. The 2012 parliamentary elections were monitored by a number of international and domestic organisations. Several major incidents of election-related violence occurred during both the polling and counting periods, resulting in serious injury, loss of life and destruction of property. Most of the violence occurred in the Highlands provinces (which are generally more violent than the rest of PNG), and it is difficult to say for sure whether individual incidents of violence were election-related or were the result of separate community or tribal tensions.
In addition to the violence, observers also reported attempts to disrupt the election in particular locations, including by hijacking or destroying ballot boxes, or interfering with the count. Observers also noted that concerns had been raised about some members of the security forces reportedly acting in support of, or in collusion with, particular candidates.
…
DFAT assesses that, generally speaking, citizens of PNG are able to participate freely in the political process. However, this freedom varies considerably according to region and gender; women experience significant barriers to political participation. Underlying violence can come to the fore during periods of heightened political activity, such as during elections, particularly in the Highlands.
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.
…

PacLII, < <CIS9BE2467781>

[2020] AATA 5891

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