1811000 (Refugee)

1811000 (Refugee) [2023] AATA 2416 (5 May 2023)
DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Susan Merrotsy
CASE NUMBER:  1811000
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Wayne Pennell
DATE:5 May 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 May 2023 at 4:37pm
CATCHWORDS
REFUGEE – Protection visa – Papua New Guinea – applicant was subjected to domestic violence by her former husband – delay in applying for protection in Australia – applicant has not experienced any domestic violence from her former husband since 2013– credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 13 April 2018.
The applicant who claims to be a citizen of Papua New Guinea (‘PNG’) applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to PNG, there was a real risk she would suffer significant harm. The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore she was not a person in respect of whom Australia has protection obligations.[5]
[2]The applicant’s application was received by the Department of Home Affairs on 7 July 2017.
[3]The delegate’s refusal was made on 13 April 2018.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant was not initially represented in relation to the review, and she filed an application with the Tribunal for a review of the delegate’s decision.[6] Accompanying that application was a copy of the delegate’s decision. At a subsequent time leading up to the review hearing, the applicant was represented. The Tribunal wrote to her and advised that it had considered all the material relating to her application but was unable to make a favourable decision on that information alone.[7]
[6]The applicant’s review application was filed with the Tribunal on 18 April 2018.
[7]The Tribunal advised the applicant on 20 February 2023.
She was invited to attend a hearing and give oral evidence and present arguments at that hearing.[8] Her representative subsequently advised the Tribunal that the applicant would appear at the review hearing to give oral evidence and present arguments, however her representative would not be participating in the review hearing process. On 27 March 2023, the applicant attended the Tribunal’s hearing, and she gave evidence in respect to her claims. Her representative did not attend.
[8]The Tribunal’s review hearing was listed for 27 March 2023.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[9] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[10] That is, the applicant 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.
[9]Migration Act 1958 (Cth), s 36.
[10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]
[11]Migration Act1958 (Cth), s 36(2)(a).
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.[12] 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.[13]
[12]Migration Act1958 (Cth), s 5H(1)(a).
[13]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]
[14]Migration Act 1958 (Cth), s 5J(1).
[15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]
[16]Migration Act 1958 (Cth), s 36(2)(a).
[17]Migration Act 1958 (Cth), s 36(2)(aa).
[18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]
[19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]
[20]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of PNG and she provided a copy of her passport to authenticate this claim.[21] The Tribunal accepts the applicant’s identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is the applicant’s country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[22]
[21]Applicant’s passport issued in Papua New Guinea on 8 April 2015.
[22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations.[23]
[23]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[24] 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’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[24]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[25]
[25]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims she faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]
APPLICANT’S BACKGROUND AND CLAIMS
[26]Migration Act 1958 (Cth), s 5AAA.
[27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Background
The applicant is from the village of [Village 1] which is located on the southern coast of PNG’s Western (or Fly River) Province and is [not far] from the Australian island of [Island 1]. Western Province is the largest and most remote province in PNG. [Village 1] has no electricity, or running [water]. [Information about Village 1 deleted].
The applicant’s former husband is an Australian citizen, and he is from [Town 1]. [Town 1] is situated north of the Australian [mainland]. The town of [Town 1] is located [at a location] and according to the 2016 Australian Bureau of Statistics census, the entire population of the island was [number] people. [information about the island deleted].
Prior to the hearing, the applicant had not provided any updating statement or statutory declaration. She explained that she relied upon the previous statutory declarations she made, and the submissions provided to the Department by RAILS in 2018.[28]
[28]Refugee and Immigration Legal Service (RAILS).
However, at the hearing she presented to the Tribunal a document signed by the case [manager]. That document was a character reference which outlined the applicant’s involvement in the multicultural women’s group. It went on to express that she was of good character. Notably it references:
A permanent visa would allow [the applicant] to remain in Australia as it unsafe for her to return to PNG. It would also allow her to remain close to her adoptive children, to become financially independent and reduce her risk of welfare dependence. Work rights would allow [the applicant] to become financially independent and contribute actively to the community. It would also improve her sense of self-esteem and sense of belonging in the community.
When discussing with the applicant the comment made in the reference that it was unsafe for her to return to PNG, she said that the author of the document was not personally aware of whether it was unsafe for the applicant to return to PNG, this was something that the applicant told the author.
The applicant said that she and her former husband are separated. They were married on [date] April 2004 on [Island 2]. They lived together on [Town 1], and she experienced significant domestic violence within their relationship. That domestic violence is discussed in greater detail later in these reasons.
In December 2013, the applicant’s former husband was working on [Island 2]. He telephoned her and told her to move all of her things from the house and to pull out all of her plants. She was to leave the house before he returned to [Town 1] later that week. Her family came and helped her pack her things. At this time, she and her former husband were waiting for her partner visa application to be determined. That application had been lodged with the Department on 17 May 2013, and she received confirmation from the Department that her application was valid.[29]
[29]Applicant’s statutory declaration dated 18 January 2018, page 3, paragraph 29.
At times within the applicant’s testimony at the Tribunal hearing she became confused about the timings of events. She often referred to her separation from her former partner as taking place in December 2013, and at other times she said it was December 2014. Her earlier statutory declaration made in January 2018 suggests that their separation occurred in December 2013.[30] Given that her statutory declaration was made closer to the time of separation to that of the Tribunal hearing, the Tribunal is inclined to accept the earlier date of December 2013 as the period of their separation.
[30]Applicant’s statutory declaration dated 18 January 2018, page 5, paragraph 38.
She also said that she had not seen her husband since separation, although she said that when she later visited [Town 1] she saw him drive past her in a motor vehicle. This took place -some years after they had separated.
After the applicant and her former husband separated, she relocated back to [Village 1]. She told the Tribunal at the hearing that there were occasions between when she moved back to [Village 1] and her trip to Australia in 2016 that her former husband visited [Village 1]. She was aware of when he visited the village, although he did not travel there to see her. He would come to her village to visit her family and relatives and he stayed with her family. There was never any verbal or physical interaction between them when he was in [Village 1]. She said that if she returned to PNG, and went back to her village, she would live in constant fear waiting for him to come to the village as there was no one to stop him from hurting her.[31] The Tribunal accepts that the applicant was subjected to domestic violence by her former husband when they lived on [Town 1], however there is no evidence of any domestic violence incident within her home village.
[31]Applicant’s statutory declaration dated 18 January 2018, pages 6 – 7, paragraph 59.
Sometime in 2015, the applicant was invited to attend the Department’s office in [City 1] for an appointment relating to her partner visa application. She did not want to go to this appointment because her mother had just passed away and she knew her children were suffering. At that time, she had been separated from her former husband for over 12 months, and she claimed that she was scared that if the visa was granted, she had to be with him forever. She claimed that she told him that she could not come for the appointment with the Department and asked that he not make her go to Australia. She claimed that he kept pushing and urging her to go to Australia because they were very close to having the visa granted. She said that she felt forced to go, and thought at least if she went to Australia, he would support her.
Notwithstanding what she claimed was her reluctance in 2015 to travel to Australia to finalise the partner visa, the applicant said that in 2016, her former husband arranged for her to travel from [Village 1] to Port Moresby and then to [City 1]. This was because of the partner visa application, and she was to travel to [City 1] for a ‘police check’. She applied for a tourist visa, which was granted on 25 May 2016. That visa was to cease on [date August] 2016.
On 4 June 2016, the applicant departed Port Moresby and flew to [City 1]. At least on that evidence, the Tribunal finds that on her own initiation and volition she voluntarily made arrangement for a tourist visa and preparation to travel to Australia. The Tribunal also finds that by this time, she had been separated from her former husband for at least 18 months. There were no occasions where she experienced domestic violence within that period, and she was not coerced to make the journey to Australia.
In respect to her travel to Australia in 2016, she said that this was her first time she had visited Australia. This was not correct. When asked further about her travel to Australia, she disclosed that in 2004 she travelled to [Island 2] with her former husband for their wedding. She stayed for six months. When asked if she had ever travelled to Australia between her wedding and 2016, she said that she had not. The Tribunal then refreshed her memory of other trips she had made to [Island 2] in June 2009 and twice in 2011. When those details were explained to her,[32] she recalled that those trips were for health reasons, and she travelled [to] [Island 2] and was treated at the [Island 2] Hospital.
[32]Migration Act 1958 (Cth), s 424AA.
The applicant’s evidence in respect to the timing of when she discovered that her former husband had withdrawn his sponsorship for her application is conflicting. In her statutory declaration dated 18 January 2018, she deposed:
Immigration Detention
52. I did not know that [name] had already cancelled my Partner Via application at this time. I only found this out in June 2017.
53. When I found out, I went to the Department of Immigration/Border Force. The Department told me that they were going to book a flight to Papua New Guinea and I must go back. I told them that I did not want to return to Papua New Guinea. I asked the Department to book a flight to Brisbane instead.[33]
[33]Applicant’s statutory declaration dated 18 January 2018, page 6, paragraphs 52 – 53.
She claimed that she when she discovered that her former husband had withdrawn his sponsorship, she self-reported to the Department. The applicant’s travel records recorded with the Department show that the tourist visa she arrived in Australia on was to cease on [date August] 2016. On 25 August 2016, she applied for another tourist visa. That visa was granted. It commenced on [date August] 2016 and ceased on [date December] 2016. From then until she was taken into immigration detention the applicant was an unlawful non-citizen.[34]
[34]See applicant’s application lodged with the Department on 10 July 2017, page 23.

Notwithstanding her earlier evidence that it was not until almost 12 months after she arrived in Australia that she discovered that her former husband had withdrawn his sponsorship, at the hearing her evidence was contrary to that time period. She told the Tribunal that about three weeks after arriving in [City 1] on [date] June 2016, (a period of approximately late June to early July) she was told by her former husband that he had ‘cancelled her visa’. She understood that he meant that he was withdrawing his sponsorship for her partner visa application. The applicant said that she was not expecting him to withdraw his sponsorship and she felt stranded in [City 1], and she was left with no support. Although she told the Tribunal that her former husband continued to financially support her for some afterwards.
Instead of returning to PNG, the applicant remained living in [City 1] with her former husband’s mother. She later moved to his sister’s house and then moved to live with cousin. She had a disagreement with her cousin, and her cousin ‘chased’ her out of the house. Notwithstanding that she originally travelled to Australia to get a police check for her partner visa application, and then learning that the sponsorship of that application had been withdrawn, she remained in Australia and extended her lawful stay until [date December] 2016.
At that time, her former husband withdrew his sponsorship, he was living and working on [Town 1], and he was in a de-facto relationship with the applicant’s niece. The applicant claimed that at the same time, her former husband was also nominated as the sponsor for a partner visa application made by the applicant’s niece.
The applicant went on to tell the Tribunal that her former husband and her niece have since married. It was noted by the Tribunal that in her statutory declaration dated 18 January 2018, she said that in the near future she planned on changing it back to her maiden name.[35] When this was discussed with the applicant at the hearing, she said that she had not changed her name back to her maiden name because she was not yet divorced from her former husband.
[35]Applicant’s statutory declaration dated 18 January 2018, paragraph 5.
After lodging her application for a protection visa on 7 July 2017, and subsequently and being released into the community subject to a bridging visa issued to her on 13 July 2017, the applicant remained in Brisbane for a period of time. In her statutory declaration dated 18 January 2018, she claimed that because she had many relatives living in [City 1], she never wanted to go to [City 1] again because she was too scared to return.[36] Notwithstanding that statement, she has since relocated to [City 1] and still lives at that locality.
[36]Applicant’s statutory declaration dated 18 January 2018, page 6, paragraph 54.
Applicant’s children
The applicant explained that she has [number] children, consisting of one biological daughter and [number] adopted children. Her biological daughter is aged in her [age] and is living in PNG. The details in regard to the adopted children are:
[details deleted] At the time of making her application for protection, the applicant said that the children [name] and [name] were aged [age] and [age] years of age. With the passing of almost seven years since her application was made, the Tribunal accepts that those children would now be aged about [age] and [age]. Although the applicant somewhat confusingly said at the hearing that the children were now aged [age] and [age], the Tribunal accepts that the evidence outlined in her application about the ages of those children is a more accurate account of their ages.
The Tribunal accepts that since December 2013 when the applicant separated from her former husband, those children have remained living with him in [Town 1]. Although her evidence at the hearing was that since separation she and her former husband had not spoken, the Tribunal accepts that there was some communication over the lengthy period of time since separation where they discussed those two youngest children.
The applicant went on to explain that she travelled to [Town 1] in the very early part of 2019 where she stayed with her former husband’s auntie. Although the applicant told the Tribunal at the hearing that this took place in 2019, she also said that it was just at the start of the year just before the COVID epidemic. It is a well-known and established fact that the COVID event commenced in early 2020.
When explaining at the hearing the circumstances of her trip to [Town 1], the applicant said she had a good relationship with her former husband’s extended family. At this point the Tribunal will identify the inconsistent nature of that comment as it relates to her earlier evidence. In her 18 January 2018 statutory declaration, she said:
I have seen with my own eyes how some of his family have threatened me. I do not believe that they will ever leave me be. I can’t go back. They will still come to the doorway and beat me up.[37]
[37]Applicant’s statutory declaration dated 18 January 2018, page 7, paragraph 62.
The applicant went on to say that she remained on [Town 1] for three weeks. At first her former husband was reluctant to allow the children to spend time with her, however with the assistance of his niece he agreed to the children staying with her on the island.
During the time that she was on [Town 1], she never spoke to her former husband. She saw him once, and that only occasion was when he was in a car which drove past her. When she returned to [City 1], she telephoned him to ask him to send the children down to her. He told her that when he was ready, he would come to [City 1] and organise the divorce papers for them.
In respect to the applicant’s return to [Town 1], the Tribunal finds that her evidence about the time when she returned is more attuned to the period just before COVID and on that basis the Tribunal finds that her return to that island took place in the very early part of 2020.
The applicant’s claims
The applicant said that she does not want to return to PNG because her former husband threatened her with a gun, and she was in fear of him. When he threatened her, she went back home to her own village in PNG. She fears that nobody can protect her, and that nobody can stop him. Her evidence was that from the very beginning of their relationship, he perpetrated family violence against her. He owned two firearms which he kept in the house, and he frequently threatened her with those firearms. She recalled one night in 2013, she was in the dining room weaving a traditional PNG mat when her former husband tried to start an argument. He started to assault her. He grabbed the mat and broke it. Because she was a quiet person, she told him she did not want to argue. This made him angry, and he threatened to shoot her. At that point she said to him 'Just shoot me now! You always threaten me.'
She explained that he went into another room and came back with a firearm and bullets. He had the bullets in one hand and the firearm in the other hand. He said something like 'you see'. She told him ‘you are always telling me you will shoot me, shoot me now'. She then lowered her head and heard him say that he was going to shoot her. Understandably, she was very scared that night. She said that she reported the incident to the [Town 1] police, but the police are his friends, and they did not take any action against him.[38]
[38]Applicant’s statutory declaration dated 18 January 2018, page 4, paragraphs 30 – 36.
Other forms of domestic violence experience by the applicant were what she described as frequent beating, almost every day. Her former husband was a very jealous man, and he became violent if he thought that she looked at someone else, this was particularly so when he was intoxicated. On some occasions when they argued, she would threaten to leave him. His response was to threaten to self-harm by hanging himself. Their children witnessed the domestic violence and there were many occasions when she took the children and left for the night because of his abuse towards her. She would return the next morning when he had sobered up. She said that if they went camping, she was smart enough to invite others. With other people there, he would not harm her.
The Tribunal accepts the applicant has experienced domestic violence from her former husband, and further accepts that the domestic violence she experienced was as she described.
The Tribunal identifies that since the incident involving the firearm in 2013, the applicant and her former husband separated in December 2013. Subsequent to her return to [Village 1], she was aware that her former husband occasionally visited the village. She explained that although he did come to the village, he was not there to see her, and nor was there any interaction or contact between them.
Notwithstanding the applicant’s evidence that she and her former husband severed all communication when the separated, the evidence shows that there must have been some communication between them, albeit for the arrangements for the applicant to travel to [City 1] in 2015 to speak to the Department, and ultimately in 2016 when she travelled to [City 1].
At this point the Tribunal will identify some inconsistencies in the applicant’s evidence, such as:
(a)Notwithstanding the above circumstances and conversations which took place in 2015 and 2016, she told the Tribunal that apart from a telephone call she made to him when she went to [Town 1] in 2020, they had not communicated or spoken since they separated in December 2013; and
(b)She told the Tribunal that about three weeks after she arrived in Australia, her former husband told her that he had withdrawn the application for a partner visa, yet her earlier evidence was that she did not discover this until after she had been in Australia for about a year.
When the applicant arrived in [City 1], she lived with her former husband’s mother. At a time later in 2016, she moved to a house belonging to her former husband’s sister so that she could help the applicant with paperwork. Sometime later, the applicant moved to her cousin's sister's house, but she told her to move out because she had been told by her former husband’s sister not to help her. She asked other people that she had met in [City 1] for help and support. On occasions she was allowed to stay under their homes. Sometimes they would provide her with food, but she never stayed in one place for too long because she could not pay and could not contribute anything. She was living from house to house. In late 2016, her former husband stopped supporting her financially. She said that she was alone in [City 1] and suffered a lot.[39]
[39]Applicant’s statutory declaration dated 18 January 2018, page 5, paragraphs 38 – 46.
When asked by the Tribunal that if she had such great fear of her former husband, why did she travel to Australia in June 2016 to undertake a police check for the partner visa he sponsored. She claimed that she told him she did not want to come to Australia. However, when asked why she did not make her application for a protection visa when she arrived in June 2016, she said she did not make the application because her former husband was making an application for a partner visa.
The Tribunal does not accept that explanation. The partner visa application for the applicant which her former husband was the nominated sponsor was filed in May 2013. Since then, they separated in December 2013. Her former husband subsequently started a de-facto relationship with her niece and as of June 2016, he was the nominated sponsor for a partner visa application for the applicant’s niece and he withdrew his sponsorship for the applicant’s application.
The applicant’s evidence was that although she had many relatives living in [City 1], she never wanted to go there again. She claimed that she was too scared to return to [City 1]. It seems that her fears of returning to [City 1] for the reasons she gave are no longer relevant, because she has relocated back to [City 1].
She also said that she did not want to return to PNG. Although she has family members in other parts of PNG, she could not relocate and stay with them because she would be considered too expensive to keep. Therefore, if she returned home to PNG, she would have to go back to [Village 1]. She said that this presents a problem for her because her former husband still lives on [Town 1], and he regularly visits his relatives in [Village 1]. Therefore, if she returned to [Village 1], she would live in constant fear waiting for him to come to [Village 1]. She fears that her former husband will continue to abuse her and there is no one to stop him from hurting her and the police infrequently visit the [Village 1] as there are no police stationed in [Village 1].
In respect to the applicant’s claim that she is in fear of her former husband and that she fears that if she returned to PNG, she is at risk of further domestic violence from him, the Tribunal particularly notes that in early 2020, the applicant travelled to [Town 1] where she stayed for three weeks. Whilst there, the two children in the former husband’s care spent those three weeks with her. She saw her former husband once during that time, and that was when he was in a car and drove past her. The Tribunal finds that the applicant’s claim of fear did not prevent her from travelling to [Town 1] on that occasion, and it did not prevent her from remaining on the island for three weeks. Nor did it prevent her from asking her former husband if she could spend time with the children. There was no evidence that she experienced harm or feared harm during the time she spent on [Town 1] on that occasion.
Domestic Violence
The country information indicates there is a high prevalence of violence against women in PNG and it remains one of the most dangerous places to be a woman or girl. Violence against women and children is rampant. Within the DFAT country information report, it is outlined that in September 2013, PNG’s parliament unanimously passed the Family Protection Act (2013). The DFAT report went on to outline that:
The Family Protection Act makes provision for interim protection orders (IPOs) and longer-term protection orders (POs), which forbid contact of the person seeking the order by a spouse, ex-spouse or family member. In-country sources told DFAT that this is a reasonable framework for a justice sector response to GBV, but suggest its implementation remains weak. IPOs can be issued by Village Courts, unlike POs, which must be issued by District Courts. While IPOs reportedly make a positive difference to perceived safety of FSV survivors, sources suggest they are not presently offering women in PNG much protection. Only about 1,000 such orders are issued per year, which is not enough given there are estimated to be 1.5 million acts of GBV in PNG each year. Furthermore, sources report the RPNGC typically lacks the inclination and resources to enforce such orders. That said, breaches of IPOs have reportedly been prosecuted upon occasion and offenders even jailed in several instances in Milne Bay province. Amendments to the Family Protection Act DFAT Country Information Report PAPUA NEW GUINEA – September 2022 17 (2013) were passed in January 2022, which increased the penalties for breaching an IPO or PO, created an aggravated domestic violence offence and created an ‘Urgent Notice’ scheme.[40]
[40]The DFAT Country Information Report, Papua New Guinea, 6 September 2022, pages 16 – 17, paragraph 3.23.
The DFAT country information report further provides that:
3.17 Article 2(5) of the Constitution calls for equal participation by PNG’s women citizens in all political, economic, social, and religious activities. While some women hold senior positions in business, the professions, and the civil service, gender discrimination exists at all levels in PNG and cultural barriers continue to significantly limit the extent of female participation. In 2020, PNG ranked 161 out of 162 countries on the UNDP’s Gender Inequality Index (162, Yemen, being the worst). Following the 2017 election in PNG, the national Parliament had no female members (and has had only seven since independence). In 2022, 201 women candidates nominated for the election – slightly higher than the 167 who contested in 2017 – with two women successfully elected to Parliament.
3.18 Violence against women and girls in PNG is very common, among the most common in the world. In PNG, such violence is sometimes referred to as Gender-based Violence (GBV) or Family and Sexual Violence (FSV). Sources report that almost all women and girls will be subject to violence at some point during their lives. The PNG Demographic Health Survey of 2016-18, which is the latest data available, found very high levels of violence against women: 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15 (including 48 per cent in the last 12 months); 28 per cent experienced sexual violence; and 18 per cent of women who had been pregnant had experienced violence during their pregnancy. The PNG Coalition of Parliamentarians to End GBV states that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of GBV every year.
3.19 DFAT assesses that women across PNG face a high risk of societal discrimination due to longstanding traditional values and gender roles which restrict their ability to fully participate in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide. Women who are subjected to gender based violence are unlikely to be able to avail themselves of adequate state protection or support services.[41]
[41]The DFAT Country Information Report, Papua New Guinea, 6 September 2022, pages 15 – 16.
Notwithstanding that information, other reliable country information about PNG suggests that women in PNG face very high levels of societal violence. In 2016, the PNG government described gender based violence as an endemic, and that two in three women were said to be affected by it.[42] In June 2020, there were 647 cases of domestic violence reported in Port Moresby an academic study found of that year that over a 19-month period, a specialist police unit set up to receive complaints of sexual violence in Boroko, Port Moresby averaged 27 complainants per month, 90 percent of whom were female, and 74 percent of whom were under age 18.
[42]Understanding Gender-Based and Sorcery Related Violence in Papua New Guinea. An Analysis Of Data Collected From Oxfam Partners 2013 – 2016, Thomas V, Kauli J and Rawstorne P, Queensland University of Technology for Oxfam, undated, page 9.
The country information suggests that although there are laws in place to protect women and children, including the Lukautim Pikinini (Child Welfare) Act 2015 and the Family Protection Act 2013, the laws are rarely enforced. Initiatives such as Family Sexual and Violence Units within the police force remain limited, with police themselves are targeting children and adults for sexual violence. Lack of services for victims requiring assistance compounds the problem.[43]
[43]Human Rights Watch, World Report 2021, Papua New Guinea,
When carefully assessing the evidence, and when that evidence is weighted against the country information, the Tribunal is satisfied that the risk of women in PNG experiencing domestic violence is of significant concern. The Tribunal also finds that the applicant experienced domestic violence within the relationship with her former husband.
Delay in making application

During the hearing, the applicant was asked to explain the significant delay between when she arrived in Australia on [date] June 2016 to the making of her application on 7 July 2017. That application was made 13 months after her arrival and only after she had been placed into immigration detention. She told the Tribunal that during that time, she had no one to help her. She claimed that her former husband telephoned her from [Town 1] about three weeks after she arrived in Australia, and he told her that he was withdrawing his sponsorship of the partner visa application. Her description of her former husband’s comments was that ‘he cancelled the visa’.
She said that at the time of making her partner visa application, she felt that she was in a very high domestic violence relationship with her former husband, and she was in fear of him. This was the reasoning behind her self-reporting to the Department.
She told the Tribunal that apart from speaking to him on the telephone when she visited [Town 1] in 2019, there had been no other communication between them. Notwithstanding that comment, the Tribunal considers that there would have had to been other communications about her travel to Australia in 2016 and him informing her that he and withdrawn his sponsorship of the partner visa.
In respect to any consideration by the Tribunal about the delay between the applicant’s arrival in Australia and her application for a protection visa, guidance can be found by the judgment in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.[44] Therefore, the significant delay in the applicant seeking a protection visa can support an adverse credibility finding as well as a finding that she does not have a well-founded fear of harm.
[44]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997.
There was a significant delay of 13 months between the applicant’s arrival in Australia to when she made her application for a protection visa. The applicant claimed that very soon after her arrival, she became aware that the application for a partner visa had been withdrawn. It seems that notwithstanding her visitor visa expiring on [date August] 2016, she made a further application for a visitor visa and her legitimate stay in Australia was extended to [date December] 2016. From that point to until she self-reported to the department in June 2017, her visitor visa had expired, and she was an unlawful non-citizen.
Clearly there is a significant delay between when she said she became aware that her former husband withdrawing his sponsorship for the partner visa, and when she became aware that he had also made a new application where he sponsored her niece as his partner. The Tribunal particularly notes the applicant’s claims that she feared returning to PNG because of her fear of her former husband. That significant delay is not behaviour indicative of someone who fears for their physical safety.[45]
[45] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
The applicant claimed that her reasons for not applying for a protection visa at an earlier occasion after she first arrived was because she thought that she would remain in Australia on a partner visa. The difficulty for the applicant in making that comment is that no formal partner visa was granted to her, the application was withdrawn within what she said was a matter of three weeks after she arrived.
The Tribunal has considered the applicant’s delay in applying for protection in Australia and finds that her protection visa was only made after a time when there had been a breakdown of her family support network in [City 1], and at a time when she had already been an unlawful non-citizen. The Tribunal has also given careful consideration to her evidence at the hearing that in 2020 she travelled to [Town 1] where she communicated with her former husband about spending time with their children. Those children were placed into her care, and she stayed on [Town 1] for three weeks. Apart from that single telephone call, there was no other evidence of any interaction with him. At best, she saw him inside a motor vehicle as it drove past her, but there was no evidence that she was in fear of him at that time, or that he did anything during those three weeks to cause her fear.
The Tribunal has carefully assessed all of the evidence, as well as the delay in respect to the applicant lodging her application and finds that the noteworthy delay casts significant doubt on the genuineness of her claims that she has a well-founded fear of persecution if she were to return to PNG. The delay in lodging her protection visa application adds weight to the finding that her claims do not appear to reflect the reality of her current circumstances in respect to having a well-founded fear of returning to PNG.
Refugee findings
The applicant is a PNG national and for a period of time resided in Port Moresby before coming to Australia. Her home region is [Village 1], which is [not far] from [Town 1] where her former husband lives. The Tribunal has made a finding that within her relationship with her former husband, she experienced domestic violence and he was the perpetrator of that violence.
The applicant claims that she has a well-founded fear that if she returned to PNG, she will be harmed by her former husband. Her fear will be objectively well-founded if there is a real chance of it occurring. The real chance test was established in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 where the High Court preferred the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[46] The question of ‘real chance’ is the test to be applied on an application for a protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a convention reason if returned to their country of nationality.[47] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[48]
[46]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.
[47]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.
[48]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
The Tribunal accepts that in the past when the applicant was in a relationship with her former husband, she was subjected to domestic violence, and her former husband was the perpetrator of that violence. Notwithstanding that finding, the applicant’s position is that she has a well-founded fear that if she was to return to PNG, she would again be the victim of domestic violence by her former husband. Having regard to the circumstances of their relationship since separation in December 2013, as it was described by the applicant, the Tribunal considers that a significant degree of speculation exists in respect to her claim.
In accepting her claims that she has been subjected to serious harm in the past by her former husband, the Tribunal has also considered her current circumstances and the country information to determine if there is a real chance that she will suffer persecution in the reasonably foreseeable future if she returns to PNG.
As the High Court has determined in Minister for Immigration and Ethnic Affairs v Guo Rei Wong, mere speculation cannot establish a well-founded fear. A fear of persecution is not well founded if it is merely assumed or of it is mere speculation. The High Court went on to find that:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[49]
[49] MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572; CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.
In determining that fear can be well-founded without any certainty, or even probability, or that it will be realised, the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs recognised the principle determined by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca that a statutory provision reflecting the relevant phrase in the Refugee Convention did not require the probability of persecution, and:[50]
That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one. One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.[51]
[50]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.
[51]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.
In undertaking an assessment of the applicant’s claim in respect to having a well-founded fear of domestic evidence if she returned to PNG, carefully consideration has been applied to the features and circumstances of the evidence presented by the applicant.
The Tribunal has given careful consideration to the applicant’s claims specifically outlined in her application and her statutory declarations which she lodged with the Department. Consideration has also been given to whether, on the available evidence, there is a foreseeable consequence of her returning to PNG there is a real risk that she will suffer significant harm in regard to domestic violence from her former husband.
The credible and reliable country information available to the Tribunal in respect to domestic violence shows that violence towards women in PNG is concerning. The Tribunal’s findings, as already outlined, are that the applicant did experience domestic violence in her relationship with her former husband.
In consideration whether there is a real chance that she will suffer persecution in the reasonably foreseeable future if she returns to PNG, the Tribunal has carefully assessed her claims, and when balancing those claims against her current circumstances the Tribunal finds that:
(a)The applicant's home region is [Village 1];
(b)The applicant is a PNG national and resided in Port Moresby before coming to Australia;
(c)The applicant experienced domestic violence from her former husband when married to him and during when they lived on [Town 1];
(d)The applicant has not seen her former husband since 2013, albeit for a very brief occasion when he drove past her on [Town 1] in early 2020;
(e)The applicant has not been harmed by her former husband since 2013;
(f)The applicant and her former husband occasionally spoke on the telephone in respect to the parenting of the two children in the former husband’s care;
(g)The applicant has a subjective fear of her former husband;
(h)The applicant travelled to [Town 1] in early 2020 where she stayed for three weeks;
(i)The applicant did not experience any domestic violence from her former husband when she was [Town 1] in early 2020;
(j)The applicant did not experience domestic violence from her former husband from when they separated in December 2013 to when she travelled to [City 1] in June 2016. During this period, the applicant had moved back to [Village 1], and her former husband frequently visited her family in [Village 1];
(k)The applicant has not experienced any domestic violence from her former husband since 2013;
(l)Notwithstanding that she knew that her former husband was in a relationship, and was the sponsor of a partner visa for her niece, the applicant still travelled to Australia in pursuit of the finalisation of her own application for a partner visa; and
In considering whether the applicant’s case contained substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to PNG, a real risk existed that she would suffer significant harm or there is a real chance that she would suffer serious harm. Having regard to, and carefully considering all the evidence, in particular the facts as outlined above, the Tribunal finds that the applicant is not a person in respect to whom Australia has protection obligations as defined in the Act.[52]
[52]Migration Act 1958 (Cth), s 36(2).
Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to her.
Complementary protection considerations
The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to PNG, there is a real risk that she will suffer significant harm.
Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[53] the Tribunal has considered the alternative criterion.[54] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to PNG, there is a real risk that she will suffer significant harm as it is defined in the Act.[55]
[53]Migration Act 1958 (Cth), s 36(2)(a).
[54]Migration Act 1958 (Cth), s 36(2)(aa).
[55]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for the reason she claimed if she returned to PNG. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[56]
[56]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered the applicant’s claim, the Tribunal does not accept that if she returned to PNG now or in the reasonably foreseeable future, she will be arbitrarily deprived of life; the death penalty will be carried out on her; she will be subjected to torture or to cruel or inhuman treatment or punishment; nor will she be subjected to degrading treatment or punishment.
Conclusion: refugee criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance she will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.
Conclusion: complementary protection criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, she will be exposed to a real risk of suffering 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 section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior Member
Attachment - Extract from Migration Act 1958 (Cth)
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2416

5 May 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice