1806214 (Refugee)

1806214 (Refugee) [2022] AATA 2614 (27 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1806214
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Bridget Cullen
DATE:27 June 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 June 2022 at 9.59am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – victim of domestic violence – fear of harm by husband and his family – applicant continues to have contact with husband – delay in applying for protection – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 February 2018 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 (PNG), applied for the visa on 10 February 2016. The delegate refused to grant the visa on the basis that they were not a person to whom Australia has protection obligations to.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2)
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the definition of refugee as defined by s.5H(1) of the Act, for the purposes of s.36(2)(a) (that being a person to whom Australia has protection obligations) or in the alternative, if they are a person that Australia has protection obligations to because there are substantial grounds for believing that the applicant will suffer significant harm if removed from Australia and returned to a receiving country.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s Claims
When lodging the application on 10 February 2016, the applicant’s claims for protection were summarised by the delegate as follows:
·The applicant fears returning to PNG due to tribal fighting in her village in [Village 1]; and
·The fighting involved her husband, his family, and another tribe.
The applicant made additional claims on 2 August 2016. The applicant by this time had become fearful of her husband, [Mr A]. Approximately a month after she submitted her application for protection, she claims that her husband beat her, and that at time, they had lived and worked together on a farm in [Town 1, Australia]. She further claimed that on one occasion, that her husband attacked her from behind by kicking her, and then stepping on her face whilst wearing a boot. A friend of the applicant’s intervened and took her to a police station. The friend claimed to see the applicant’s husband grab a knife and attempt to cut her.
She further stated that the police took her to the hospital, and she had not seen her husband since that time, but that he had threatened her with rape and murder, with a police officer helping her apply for a protection order. She claims she feels protected by the police in Australia.
She further claimed that domestic violence was a part of their marriage and that he beat and abused her several times in PNG, where she could not receive assistance as the police in PNG ‘abuse people’, accepted bribes and that it would be a waste of time. She also said that she had already approached local community leaders, who said they would talk to her husband and ask him to be a ‘good man’.
She claimed she did not know if he was in Australia, but that he had called their children in PNG and told them that he would murder the applicant and had sent emails to the Department requesting her deportation and return to PNG.
She further claimed she was not aware if the tribal fighting had ended, as claimed by her husband, but did not know if it was true, but did not care anymore as she was scared of her husband, and that she was worried she would be raped or killed by him if she returned to PNG. She further claimed that she could not relocate in and live with her parents, as he would be able to locate her.
The applicant’s migration agent (at that time) made further submissions on 4 August 2016, namely that the applicant had been further assaulted, subject to violent and derogatory phone calls and text messages with threats of rape and murder, that a temporary domestic protection order was issued against her husband, and a domestic violence application form was completed by a police officer. The submissions finish with the applicant’s belief that if returned to PNG, her ex-husband or members of his family will kill her.
To date, the Tribunal has not received any further documentation or submissions relating to the applicant’s claims.
Relevant Country Information
The Tribunal has considered relevant information about domestic violence, law and order, and tribal conflict in PNG, from the current DFAT country report. That information sets out the following important context about the applicant’s claims as follows:
Domestic Violence
3.32Levels of violent crime against women are extremely high across PNG. Domestic or family violence is particularly endemic. The precise number of women who experience violence at the hands of a partner or family member is unknown – statistics are unreliable, and there is a social stigma in PNG about reporting. Human Rights Watch (HRW) published a report on family violence in PNG in November 2015 that found that the problem continued to be pervasive throughout the country. An earlier survey, published in 2013, found that 80 per cent of men in Bougainville reported that they had perpetrated physical and/or sexual violence against a partner. A March 2016 report from Medicins Sans Frontieres (MSF) detailed how a dire lack of protection mechanisms, a weak justice system and a culture of impunity endangered the health and lives of victims of violence even if they managed to reach medical care.
3.33The November 2015 HRW report found that police and prosecutors rarely pursued criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Police often demanded money from victims before they would act, or simply ignored cases occurring in rural areas. Police appeared reluctant to refer survivors for protection orders, and survivors who sought protection orders frequently encountered delays in the courts. When police did get involved in family violence, they typically mandated mediation and reconciliation for the couples involved.
3.34The November 2015 HRW report found there was a dire lack of services for people requiring assistance after suffering family violence. Most areas had no safe houses, and no area had enough. Qualified counsellors were largely non-existent, case management was rarely provided, legal aid was almost entirely absent, and there was no safety net to assist survivors, particularly those with dependent children, who needed temporary support and assistance to leave their abusers and become financially independent. The Family Protection Act (2013) makes family violence a crime, punishable by up to two years and/or a fine of PGK6,000 (AUD2,750). The Act also created new mechanisms, including establishing Family and Sexual Violence Units (FSVUs) in police stations and Family Support Centres in hospitals, to protect and assist victims of family violence. As of the publication date, 15 FSVUs were operational nationwide, staffed primarily by female RPNGC officers. All were under-resourced, and only able to operate for limited hours despite considerable demand for their services. Although the Act came into force in March 2014, as of the publication date it was yet to be fully implemented.
Law and Order
2.35While varying in degree according to location, the overall crime rate in PNG is extremely high and is characterised by high levels of violence. Crimes occur randomly, and are particularly prevalent in Port Moresby and other major cities; the settlement areas of towns and cities are particularly dangerous. Machetes and firearms are often used in assaults and thefts. Car-jackings, armed robberies, assaults (including sexual assaults) and stoning of vehicles are common. The types of crimes experienced in PNG vary significantly by region and by gender. Gender-based violence and crimes against children occur regularly, and total crime victimisation for women and children are likely to be heavily under-reported (see also ‘Women’).
Tribal violence
2.36Tribal Violence 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.
2.37Tribal 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.
2.38Tribal 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.
2.39The 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 (see ‘Glossary’) if they testify.
Tribunal Hearing
The timing of the application for protection
The applicant appeared at the Tribunal hearing, held on 25 October 2021 to give evidence, and make submissions. She was assisted by an interpreter proficient in the Pidgin and English languages. The Tribunal was careful to ensure that the applicant understood the Tribunal’s role, the Tribunal’s questions, and the interpretation. The applicant told the Tribunal that she did understand all of the interpretation and proceedings.
The applicant confirmed her travel history between PNG and Australia. She told the Tribunal that she first arrived in Australia [in] February 2015, as the holder of a FA 600 Tourist visa, and departed [in] May 2015. On 15 October 2015, she was granted another FA 600 Tourist visa, which was valid until 1 February 2016.
The applicant arrived in Australia for the second time [in] November 2015. She applied for the protection visa that is the subject of this review on 10 February 2016.
The Tribunal asked the applicant why she had waited until her tourist visa was expiring to apply for the protection visa. She told the Tribunal she didn’t know how to proceed to lodge a protection visa, until she had stayed for some time.

The Tribunal also asked why the applicant didn’t apply for the protection visa during her first trip to Australia. The applicant says that she returned to leave her children “in a safe place”, having decided that Australia was a good place. She told the Tribunal that she then returned to lodge her protection visa.
The Tribunal asked the applicant if she knew, when she arrived in Australia the second time, that she was intending to apply for a protection visa. At this point, the applicant told the Tribunal that she needed to get more information before applying.
The Tribunal notes that the applicant has applied successfully for two tourist visas and considers the information she has provided the Tribunal with about the delay in applying for the protection visa to be somewhat inconsistent. On one hand, she suggests that she needed more information to apply for the protection visa after her second tourist visa had ended. Then, she also says that she returned home to PNG after her first visit to prepare her children for a further departure by her. This is suggestive of an intent by the applicant to leave PNG for good, and to reside in Australia permanently.
The Tribunal invited the applicant to comment on this inconsistency in her own evidence. The applicant repeated the evidence she had already given, without addressing the inconsistency.
The Tribunal considers that the timing of the application for the protection visa, only as the applicant’s second tourist visa was ending, in conjunction with the applicant’s evidence about returning home to prepare her children, supports a finding by the Tribunal that the applicant does not have a genuine fear of returning to PNG but is using the protection visa application process to extend her time in Australia. The Tribunal considers it more likely that a genuine applicant for protection, especially one who purportedly fears rape and murder, would not have returned to PNG following her first tourist visa being granted, but would have applied for protection at that earlier juncture.
The applicant’s claims to fear domestic violence by her husband
The applicant told the Tribunal that she came to Australia with her husband, and that he “beat her here” (in Australia). The applicant claims that she does not know where her husband, [Mr A], currently resides, but says that it is somewhere in [Town 1], Queensland. The applicant also lives in the [Town 1] area. The applicant told the Tribunal that she has not lived with [Mr A] during her time in Australia. She does not know whether [Mr A] has a visa that permits him to reside in Australia permanently.
She says that she last saw [Mr A] in “2018 or something”. At this time, she was standing in front of the [Town 1 supermarket] when she saw [Mr A] with a white man. They did not speak. The applicant says that [Mr A] saw her but did not have any reaction to her.
The applicant said that in 2016, in “May, March, or February” was the last episode of domestic violence she experienced in her relationship with [Mr A]. Although it has been some 3-years since she last [Mr A], he is “angry and violent” and that is why she fears him. She says that there is a “protection order” against him and for that reason he does not approach her. The Tribunal has been provided with a copy of a Temporary Protection Order dated [in] July 2016 issued by [a] Magistrates Court, naming [Mr A] (aka [alias]) as the Respondent, and the applicant as the Aggrieved.
The basis for the Temporary Protection Order was reports by the applicant of a hearsay nature, alleging that [Mr A] had made serious threats against her (to their son); and translated text messages alleged to be from [Mr A] to the applicant. There is no indication that the police confirmed that the messages were, in fact, from [Mr A]. In Queensland, a Temporary Protection Order is made in the period before a Court decides whether to make a Domestic Violence Order. The Tribunal has not been provided with a copy of any further orders and does not know whether the matter progressed to a hearing where the evidence was tested.
The Tribunal asked the applicant why it was a problem for her to return to PNG, given that [Mr A] is currently residing in Australia. She said that his family and his family have tribal fighting, and she loves Australia and wants to stay. If she returns, [Mr A]’s family will fight her, because she was “bought with the highest bride price,” and “it is their culture to beat” her. The police could not protect her, as there is no law and order with the PNG police.
Are the applicant’s claims genuine?
In the delegate’s decision record, which the applicant provided to the Tribunal, the delegate expressed concern that the applicant’s claims were not genuine, for the following reasons:
·Photos were found on Facebook accounts indicating that the applicant and [Mr A] were together in July 2017 and again in September 2017;
·That the applicant's home address is in very close proximity to [Mr A’s] being about a minute away by car;
·That the applicant had daily contact with [Mr A]; and
·That the applicant's financial transactions undertaken were in close proximity to [Mr A].[1]
[1] Page 5 of delegate’s decision record, dated 16 February 2018.
The Tribunal afforded the applicant an opportunity to comment on this information at the hearing.
The applicant told the Tribunal that sometimes relatives might take photos to send back to her children to let them know she was ok. She did not explain why, having claimed that she feared domestic violence, she continued to associate with [Mr A] even after the 2016 application for a Temporary Protection Order.
Because the applicant continued to see her husband, the delegate concluded that her claims to fear him were not genuine. The applicant told the Tribunal that she would sometimes see her husband at “PNG gatherings” and this would make her feel badly. The applicant’s children (aged [variously]) continue to live with her mother. The applicant says that she keeps in contact with her children, as does their father.
The Tribunal does not accept the applicant’s evidence in relation to her claim to fear domestic violence by her husband as a basis upon which she requires protection. The applicant continued to have contact with [Mr A] following her application in 2016 for a Temporary Protection Order. The applicant and [Mr A] both reside, on her evidence, in [Town 1], which is a [regional] town in Queensland. The applicant’s explanation for the Facebook photos is vague and does not address the fact that the pictures depict her with [Mr A], despite her claims to fear him.
The Tribunal is prepared to accept, based upon the high levels of violence prevalent against women in PNG, that the applicant has experienced domestic violence in her past. However, given the information available, the Tribunal finds that the applicant’s claims of fear of domestic violence are not current.
The Tribunal considers that the applicant has not been forthcoming in her evidence before the Tribunal about the nature and extent of her contact with [Mr A]. The Tribunal finds that the applicant has attempted to hide the true extent of her contact with her husband firstly from the Department, and then the Tribunal.
The Tribunal considers the evidence obtained by the Department, suggesting that the applicant and [Mr A] had daily contact, undertook financial transactions in close proximity to one another, and appeared in photos together on Facebook to be more reliable than the applicant’s evidence.
There is no evidence before the Tribunal subsequent to the 2016 Temporary Protection Order that indicates that there have been any further episodes of domestic violence between the applicant and [Mr A], or that there have been any breaches of the Temporary Protection Order. On this basis, the Tribunal finds that [Mr A] does not present a current risk to the applicant.
Claims to fear tribal conflict in [Village 1]
The applicant told the Tribunal that she also fears returning to PNG because of tribal conflict in [Village 1]. She said the fighting had subsided, but they had not yet gained peace. In response to “who” was fighting, she said that the tribal fighting was from her husband’s side of the family. In response to what the fighting was about, the applicant said that her husband’s sister was raped, so the fighting began, and there “were guns”. The Tribunal asked the applicant why she would be drawn into this fighting on her return. She said, “Because peace has not been made with that tribe, I fear for my son”, as her boy stays with her family.
The applicant said that those responsible for the tribal fighting in [Village 1] cannot reach her children. This is because her parent’s place, where the children live, takes about 5-hours to reach by truck, driving from her husband’s family’s place in [Village 1].
The applicant said that she can’t return and stay in her parent’s village with her children, because she has been brought with a high bride price. Therefore, she must return to her husband’s family in [Village 1], and she cannot go back and stay with her parents. She fears that because of culture, her husband’s family would complain.
The Tribunal is prepared to accept that the applicant’s husband’s family is in [Village 1], and that there may be tribal conflict in [Village 1]. The Tribunal accepts the existence of conflict in [Village 1] based on the current DFAT report which indicates that there is a high rate of conflict in the PNG highlands, rather than based on any information the applicant has provided.
The applicant has been unable to provide any particulars about the fighting. The Tribunal also does not accept that the applicant is in any way involved or impacted by the fighting. The Tribunal also considers that the applicant could return to PNG safely and reside with her children and her mother, some 5-hours away from [Village 1]. As the Tribunal prefers the information from the Department to the effect that she continues to be in contact with her husband, the Tribunal does not consider that she is at risk in relation to any bride price conflict, either. That the children continue to be in contact with both herself and their father indicates a level of family harmony, in conjunction with the Facebook photos obtained by the Department.
Cumulative claims
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and submissions available to it, in addition to the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of being a victim of domestic violence by her husband, nor because of tribal fighting in [Village 1], or on the basis of any other reason if she returns to PNG now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion, or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to PNG.
Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm
The Tribunal has also considered the applicant's claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on the grounds of being a victim of domestic violence by her husband, nor because of tribal fighting in [Village 1], or based on any other reason, now or in the reasonably foreseeable future, if she returns to PNG.
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and submissions available to it, in addition to the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to PNG now or in the reasonably foreseeable future.
Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act.
Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). Her fear of persecution is not well-founded as required by s.5J of the Act, and therefore she is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant's individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG that there is a real risk that she will suffer significant harm.
Overall conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Bridget Cullen
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.
…

[2022] AATA 2614

27 June 2022

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