1902373 (Refugee)

1902373 (Refugee) [2022] AATA 4578 (7 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902373

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Nora Lamont
DATE:7 November 2022
PLACE OF DECISION: Brisbane

DECISION: The Tribunal remits the matter for reconsideration with the following directions: that the first named applicant satisfies s 36(2)(a) of the Migration Act; and that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 07 November 2022 at 2:27pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – political opinion – electoral violence – fear of killing – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 January 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Papua New Guinea, applied for the visas on 21 October 2016.
The applicants appeared before the Tribunal on 4 November 2022 to give evidence and present arguments.
The applicants were not represented in relation to this review.
Based on copies of the applicants’ passports which were provided to the Department and to the Tribunal, the applicants oral and written evidence, and in the absence of any evidence to the contrary, the Tribunal accepts that all the applicants are nationals of Papua New Guinea and has assessed their claims against that country in relation to s.36(2)(a) and s.36(20(aa) of the Act.
There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any safe third country for purposes of s.36(3) of the Act.
There are no non-disclosure certificates on the applicant’s file.
The delegate did not accept the following claims made by the applicants: [1]
·Applicant 1 was considered an influential leadership figure within his tribe or was responsible for swaying large numbers of his tribespeople to vote for Vincent Auali in the 2012 national election.
·Applicant 1’s village was attacked by members of his own tribe, as well as other affiliated tribes, due to the applicant’s decision to support Vincent Auali in the 2012 national election.
·Applicant 1 or his family were targeted or received threats of violence as a result of his support for Vincent Auali in the 2012 election.
·Applicant 1 sought to travel to Australia for the purpose of escaping politically or tribally motivated violence toward him.
·Applicant 2, or Applicants 3, 4, 5, 6, or 7 were targeted or threatened with violence in Port Moresby following Applicant 1’s travel to Australia.
[1] [File number]
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The applicant’s claims (Applicant 1 & 2) are summarised as follows: [2]
[2] [File number]
·Applicant 1 claims that he gave support to his [Associate 1], Vincent Auali, who ran as a parliamentary candidate for Tambul Nebilyer Open during the 2012 Papua New Guinea national elections.
·Applicant 1 claims that because of his support for Vincent Auali, another local candidate named Thomas Negints lost votes to Auali. Applicant 1 claims that Negints’ supporters, who were members of his own tribe, the [Tribe 1], as well as of the [Tribe 2] and [Tribe 3] tribes, blamed Applicant 1 when Negints was not elected, and were angered because they had invested a lot of their resources into Negints’ campaign.
·Applicant 1 claims that members of the [Tribe 1], [Tribe 2], and [Tribe 3] tribes came to his tribal village, burnt houses, and physically assaulted two men.
·Applicant 1 claims that a person from his clan named [name] called him on the phone and visited him at his workplace in [Town 1] to advise that his life was in danger.
·Applicant 1 claims that he used his employment as [an occupation 1] to escape from Papua New Guinea by applying for a job in Australia, whilst moving his wife and children to Port Moresby. Applicant 1 claims that after his family’s location was discovered by his tribal enemies, he moved them again to [Town 2], before eventually bringing them to join him in Australia.
·Applicant 1 claims his tribal and political rivals would continually seek to harm him if he were to return to Papua New Guinea, especially with tensions escalating because of the 2017 general elections.
·Applicant 2 claims that [their Associate 1], Vincent Auali, is a former Member of Parliament (MP) in Papua New Guinea, having served as MP for Tambul Nebilyer Open from 1992 to 2002. Applicant 2 claims that in spite of [their Associate 1] losing his seat in 2002, he continued to contest the electorate of Tambul Nebilyer Open in the national elections of 2007 and 2012.
·Applicant 2 claims that her husband (Applicant 1) was influential as the only educated person from his tribe, and when he gave his support to [their Associate 1’s] election campaign in 2012, many people from his tribe followed that decision. Applicant 2 claims that other persons within Applicant 1’s tribe had provided large sums of money and several pigs to the election campaign of another candidate and were angered by the fact that Applicant 1’s support for [their Associate 1] had diverted votes away from their candidate.
·Applicant 2 claims that in retaliation for dividing the vote, persons from Applicant 1’s tribe attacked his tribal village, burning houses, destroying crops, assaulting [Applicant 1’s] [Relatives 1], and seeking to kill Applicant 1 and their children.
·Applicant 2 claims that she and her children relocated to Port Moresby but was informed that her and her children’s lives were in danger and may be killed by men from her husband’s tribe.
Tribunal Hearing
Before the Tribunal were the following documents and submissions:
·Department Folio.
·AAT Folio.
·Facebook posts of political violence in Papua New Guinea.
·Statements from the applicants.
·Statutory Declarations from primary applicant’s [Associate 1].
·Marriage certificate.
I spoke with both the primary applicant and secondary applicant throughout the hearing. The primary applicant went to University in Papua New Guinea and received a degree in [occupation 1]. He is currently employed at a [business] in Western Australia. Applicant two works for [a named employer]. The applicants were high school sweethearts, and they have five children.
The primary applicant first arrived in 2012 held a [temporary] visa until 2016. His wife and children arrived as dependents in Australia in 2013.
Applicant two stated that [their Associate 1] was a village chief before he went into politics in 1992 as a member of the Democratic Movement. He was re-elected in 1997 and lost his seat in 2002. He has since passed away.
The primary applicant said that he was actively supporting [their Associate 1] during the 2012 campaign. He would drive his car around with [their Associate 1’s] stickers on the car, he contributed financially to pay for petrol, and he invited people to see that he was actively supporting [their Associate 1]. [Their Associate 1] favoured development as it was lacking in the area. The applicant would go to the park in the village where people gathered and give them money for food or drinks or beetle nut.
The campaign went for two to three weeks but in reality, it went for months but unofficially. However, the applicant’s [Associate 1] lost by a wide margin as everyone in the village had already committed to another candidate. But people did break away and vote for his [Associate 1] and the vote was split. This angered people.
The applicant went back to [Town 1] where he was working and living and people converged on his village and beat up some of his extended relatives, burnt houses, took pigs. They called out his name as a warning. I asked him why they were so angry at him. He said because people gave money to [their Associate 1’s] campaign and pigs and the only way to pay them back is by winning and since he did not win, they became angry.
His [Relative 1] called him and told him of what was going on in the village and warned him not to come back. Even going to Port Moresby was dangerous. He knew he had to leave and come to Australia, but he had just received a promotion at work, and he did not want to come. He had just been promoted to [a senior role].
The applicant feared that someone would kidnap the children. To get from [Town 1] to Port Moresby you had to go through [a named town] and so he sent is wife and children to live in a police barracks with his dad.
I asked him why he was so hated by the villagers about the election and not others. He said that the clan takes pride because he had an education, and he was one of the few from his village that did have an education and that also makes you a target of other clans. It is very hard to move around the villages.
I said it has been ten years so why would anyone care? He said they have a target list they will not forget and some of them would be in Port Moresby. Many people have died protecting the ballot boxes. His best friend from school was killed in election violence.
The secondary applicant said [their Associate 1] died in 2019 and he was unusual in that when he married, he went to his wife’s village and not his village so when he died his wife tried to take him back to the village and they told her to get out. I asked her what she thought would happen if they returned to Papua New Guinea. She said they would probably kill her husband, and they could kidnap or rape the children.
I asked them why there was no news coverage about this event, and they said they are isolated, and the only coverage is of big cities and that people rely on others to tell them what is happening and now they have Facebook, and they can get coverage.
Country Information
Drivers of violence in PNG’s elections:
The 2012 national elections in PNG will take place in an environment of significant social change that is the result of an ongoing disruptive transition from traditional societies to hybrid modernity. In this environment, Westminster institutions, new technologies and a cash economy exist alongside the cultural mores of diverse subsistence societies, only relatively recently united as the nation state of Papua New Guinea.
While many issues relevant at the last election in 2007 remain, four factors have the potential to increase electoral irregularities and violence. Shifting patterns of violence: from traditional conflict to modern electoral violence Traditional customary disputes over land, women and pigs are the major sources of competition and violence in PNG.
In very simple terms, political success has historically centred on men securing more land, wives and children to expand production and exchange as a means to enhance power. This system and its related forms of social and political conflict were strictly conducted within agreed ‘rules of the game’ that demarcated acceptable levels of violence. Traditional forms of competition and status are giving way to competition for political power and money within the modern national parliamentary system. This change is transforming what were previously deemed to be acceptable forms of violence. Political Scientist Joe Ketan has detailed this change in conflict behaviour and shown that whilst traditional forms of political activity still occur (gift exchange and retributive violence), such activities are now almost purely directed at securing access to the political opportunities that flow from becoming a Member of Parliament. Such a position is coveted on the grounds that material opportunities available through the State are far greater than those available locally.
Traditional competitive exchange is not exclusively focused on the national political scene, but the increasing value placed on the prize of political office is reflected in the significant sums of cash spent on election campaigns – which can be more than successful candidates have access to recovering once elected. A recent spike in politically motivated kidnappings, and attacks (including assassination attempts)6 on candidates and electoral officials – is of concern. Such incidents – though not uncommon prior to elections – do not help to build public confidence in security around elections.
One of the most obvious impacts of intensified political competition is the increased demand for cash that voters make of prospective or successful candidates. This form of political behaviour and electoral competition is driven by the local political culture of ‘gift exchange.’ To describe the political culture simply, the majority of people living at the village level tend to see national elections as taim bilong kai kai (Tok Pisin for ‘time of food’).
As one interviewee said, ‘elections are like a fruit that comes in its season.’ Elections for many local people therefore represent their biggest opportunity in the political cycle to extract material benefits, with the quid pro quo being that the elected candidate can then do what they want for the next five years. Traditionally, this presentation of gifts for electoral returns has been in the form of pigs, food and other basic goods, which have been given in village group settings. In recent years this has morphed in many areas into demand for cash gifts, which are often delivered privately and thereby bypass traditional mechanisms of accountability, implying corruption.[3]
[3] The 2012 National Elections in Papua New Guinea: Averting Violence (ethz.ch)
Further country information demonstrates that widespread violence occurs during elections in Papua New Guinea involving political supporters and tribesman who are aligned with rival candidates.
Given the political impasse which has afflicted Papua New Guinea (PNG) since August 2011, there is a high likelihood of the June/July parliamentary election results being contested, and intense violence could ensue throughout the country and particularly in the capital Port Moresby and the Highlands. Past elections, for instance in 2002 and 2007, were marred by significant and widespread violence involving political supporters and tribesmen aligned with rival candidates.
Maplecroft’s newly released Country Risk Report on Papua New Guinea finds that with political support closely associated with ethnic identities, a confirmation of Peter O’Neill’s premiership at the polls may present a contentious shift in political power. As highlighted by the map, the risk of violence is magnified by the proliferation of small arms throughout the country and especially in the capital and violence-prone Highlands. Reports have emerged that most candidates are arming themselves and their followers, raising the prospect for localised violence in particularly contentious constituencies. Security risks for companies operating in the country are therefore heightened over the election period and careful monitoring of the situation is advised.[4]
[4] Political violence in Papua New Guinea (as of 12 June 2012) - Papua New Guinea | ReliefWeb
Findings
The issue in this case is whether the applicants will be harmed in Papua New Guinea because of the primary applicants imputed political opinion. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
I found the primary applicant and his wife to be honest and open throughout the hearing. Despite some reservations on my part about the timing of their application, none the less I found their claims to be compelling and not embellished for migration purposes.
What at first appears to be fantasy and perhaps exaggeration turns out to be how politics operates within Papua New Guinea. The country information clearly supports the applicant’s contention that violence, payback, retribution, and money all play a role in campaigns within villages. Indeed, its now 2022 and nothing seems to have changed. An excerpt from The Conversation [5] states:
To understand the problems of elections in Papua New Guinea, and the violence associated with them, it is necessary to appreciate the social and political context in which elections take place. Around 80-85% of Papua New Guineans live in rural villages and hamlets with limited involvement in the cash economy. Politics therefore tends to be heavily localised. Political parties play a very minor role in how electors vote. Voters tend to vote for candidates they believe will give them access to government and bring them local services and other benefits – usually members of their clan or former public servants or businessmen who have a good local record.
Competition to get elected is intense, with large and growing numbers of candidates contesting in most electorates (on average 29 per electorate in 2022, but over 70 in two electorates). Some candidates invest large sums of money campaigning, including vote buying.
In the lead-up to the 2022 election, as in 2017, there were reports of sophisticated weapons being imported and distributed among candidates’ supporters in the highlands. The weapons were presumably for use in case of confrontations between rival candidates and their supporters.
[5] PNG elections show there is still a long way to go to stamp out violence and ensure proper representation (theconversation.com)

This country information supports both the applicant’s description of the 2012 election and what happened to them. Given this I accept the following:
·The applicant supported [their Associate 1] in the election with money, buying votes, driving the car around and as a leader as he was educated people paid attention to him.
·I accept that after the election people in the village were disgruntled and violence and burning buildings down occurred.
·I accept that the culture in Papua New Guinea is one of retribution and that the applicant even ten years later faces violence over this incident.
·I accept the applicant came to Australia wanting to build a life away from the violence and do it via employment. When that did not work out, he chose to apply for protection, as he knew he could not return to Papua New Guinea and could not take his wife and children back there.
I am not satisfied that the applicants can relocate within Papua New Guinea. The primary applicant stated that even in Port Moresby they will find him, and they have long memories. DFAT reports that your whereabouts can be communicated from Port Moresby back to the villages: [6]
Exacerbated by the widespread take-up of mobile phones and social media, and the presence of diaspora from other parts of PNG (most especially in Port Moresby which one source referred to as ‘Little PNG’), those who relocate are often recognised in their new home and this information will typically be communicated to their place of origin. This may present a continuing threat to those attempting to escape violence.
[6] DFAT Country Information Report Papua New Guinea page 24
I have considered whether the applicants can avail themselves to the protection of the state. Given the state cannot even provide for fair elections without being marred by violence, I consider that the state cannot and will not provide protection for the applicants. DFAT assesses that the capacity of the police is limited: [7]
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.
[7] DFAT Country Information Report Papua New Guinea September 2022 page 23
I have considered that country information is clear that the primary applicant and his family face violence upon return to Papua New Guinea and I consider that chance to be described as real, and the harm that would be experienced would be serious.
I find that the violence that the primary applicant would face does constitute serious harm. I therefore consider that based on the evidence before me that the applicant has a real chance of serious harm based on his imputed political opinion. I find that the primary applicant has a well-founded fear of persecution for this reason.
As I have found the primary applicant to be a refugee I have not considered the alternative criterion in s.36(2)(aa).
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
Applicants two through six
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).
However, the Tribunal is satisfied that the other applicants to the first named applicant his wife and children are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
decision
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)       that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Nora Lamont
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 4578

7 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Remedies

Statutory Construction