1903294 (Refugee)

[2023] AATA 2487

1903294 (Refugee) [2023] AATA 2487 (8 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903294

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Wayne Pennell

DATE:8 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicants satisfy section 36(2)(a) of the Migration Act 1958.

Statement made on 08 June 2023 at 9:52am

CATCHWORDS

REFUGEE – Protection Visa –Papua New Guinea – aunt seeking retribution – a real chance of experiencing serious harm in the form of payback from Aunt and or her family members – best interest of children – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

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

1. 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 Applicants Protection visas under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The Delegate’s decision was provided to the first Applicant on 11 February 2019.

2. The first Applicant claims to be a citizen of Papua New Guinea (‘PNG’) and applied for a Protection visa.[2] The second Applicant is his daughter and she was born after the application was lodged. When assessing the application, the Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed to PNG, there was a real risk they would suffer significant harm. Therefore, the Delegate refused to grant the visas[3] on the basis that they were not refugees as defined by the Act[4] and they were not persons in respect of whom Australia has protection obligations.[5]   

   [2]The Applicants’ application was received by the Department on 17 October 2016.

   [3]The Delegate’s refusal was made on 11 February 2019.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).

3. The first Applicant filed an application with the Tribunal for a review of the Delegate’s decision.[6] At a subsequent time, the Tribunal wrote to the first Applicant advising him that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone.[7]

   [6]The first Applicant’s application was filed on 13 February 2019.

   [7]The Tribunal advised the first Applicant on 11 April 2023.

4. The Tribunal invited the first Applicant to attend an in-person review hearing scheduled for 31 May 2023. He responded to that invitation[8] and attended the hearing at the time, date and place of when it was scheduled. 

   [8]The first Applicant returned the hearing invitation form to the Tribunal on 17 April 2023.

   CRITERIA FOR A PROTECTION VISA

5. 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).

6. 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).

7. 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).

8. 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.

9. 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).

10. 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).

11. 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 APPLICANTS’ IDENTITY

12. The first Applicant claims to be a PNG citizen and provided a copy of his passport to authenticate this claim.[21] The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is the first Applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]

    [21]The first Applicant’s passport was issued in Papua New Guinea [in] 2016.

    [22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

13. The second Applicant was born in Australia. The first Applicant is her father. A copy of the second Applicant’s birth certificate has been provided to the Tribunal and the Tribunal accepts her identity.

14. Based on the evidence, the Tribunal is satisfied the Applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[23]

    [23]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

15. 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 THE APPLICANTS’ CASE

16. The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed to PNG, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm; and whether they are persons in respect to whom Australia has protection obligations as defined in the Act.[25]

    [25]Migration Act 1958 (Cth), s 36(2).

17. The mere fact that the Applicants claims they have a fear of persecution for a particular reason does not establish either the genuineness of their asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because they claim that they face 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 Applicants to satisfy the Tribunal that all the statutory elements are made out.

18. The Tribunal is not required to make the Applicants’ case for them. It is their responsibility to specify all particulars of their claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claims.  The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of their claims, or to establish or assist in establishing their claims.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the Applicants.[27]

    APPLICANTS’ 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.

    Introduction

19. The first Applicant is a citizen of PNG and comes from Western Highlands Province. He was born in [City 1] and identifies as belonging to the Walin clan on his mother’s side, and the Sumbra clan on his father’s side.

20. The second Applicant was born in Australia. The first Applicant is her biological father. Her mother is the subject of a separate application before the Tribunal.[28] At the time of the review hearing, the first Applicant was aged [age] and the second Applicant was aged [age]. The first Applicant is in a relationship with the second Applicant’s mother, and they have a second child who is not subject to any application before the Tribunal. That second child is aged almost [age].

    [28]Tribunal Case No. 1914091

21. The first Applicant was granted a Visitor visa on 7 August 2016, and he arrived in Australia on [date] September 2016. Six weeks after his arrival, he lodged an application for a Protection visa with the Department. Given the relatively short time frame between his arrival in Australia and when he lodged the application, the Tribunal does not consider there is an issue with respect to any delay in him making that application.

22. The Tribunal notes that after the first Applicant lodged his application for a Protection visa, he established a relationship with his current partner. The Tribunal also observes that the Delegate’s decision to refuse his application was not made until 28 months after he lodged his application; and it has taken a further four years before the review hearing was undertaken by the Tribunal        

    Claims

23. The first Applicant’s personal circumstances are that for the primary school stage of his schooling, he lived with his parents and family in [City 2]. Towards the end of primary school and into the early part of high school, the relationship between his parents started breaking down. He thought that it was due to his father’s alcohol problems which made him abusive towards the first Applicant’s mother. It was during this period that he witnessed a significant amount of domestic violence between his parents.

24. As he was getting older, the first Applicant started to protect his mother and ‘stand up to’ his father when he was drunk and being domestically violent to his mother. Because the first Applicant sided with his mother, and was standing up to his father, this caused a break down in his relationship with his father. His father told him that he no longer thought of the first Applicant as his son, and he should leave the family home.

25. The first Applicant then went to [City 1] to live with his maternal uncle and his wife, [Ms A]. After arriving at [City 1], the first Applicant got to meet other members of his uncle and [Ms A]’s families.

26. At some point in 2015, the first Applicant’s uncle started working [in] the Hela Province. It was a fly-in, fly-out type of job. This meant that he was away for several days at a time. After some time, he noticed that his uncle was not coming back from his work as often as before. He started hearing rumours that his uncle was having an extra-marital affair with a woman from the Enga Province. He recalled his uncle coming back home and being confronted by [Ms A] and her brothers. A fight broke out and [Ms A]’s brothers assaulted his uncle. His uncle managed to get away and he left [City 1].

27. The first Applicant claimed that after his uncle left, [Ms A] turned her attention to him. She continually accused him of knowing about his uncle’s affair, and queried why the first Applicant did not tell her. She insisted that he should find somewhere else to live. However, because he was still studying at [a] college, and because he had nowhere else to live or to go, he stayed at her house.

28. The first Applicant claimed that he was at the house one night looking after [Ms A]’s children. She was out for the evening. About four or five men came to the house. Amongst this group were [Ms A]’s brothers. They were drunk and were calling out for her. When he came out to meet them, he was asked by the group what he was doing at the house. The group then attacked him. He recalls getting struck over the head with an iron pot. He further claimed that he eventually managed to escape the group and he ran away down the street.

29. He realised that he was bleeding from a head wound where he had been struck. He then made his way to a house owned by his aunty [Ms B]. When he got there, he told [Ms B] what had happened. She offered that he could hide at her house. He stayed hidden at [Ms B]’s house for the next couple of weeks. He was warned by [Ms B] that because of what happened, he could have been killed and he needed to straighten the situation out. He was aware that when he hid at [Ms B]’s house, [Ms A]’s relatives were searching for him.

30. The first Applicant claims that he was nervous about remaining at [Ms B]'s house, as her husband was a relative of [Ms A]'s. He then moved to a friend’s house which is on the outskirts of [City 1]. He stayed there for a few more weeks before he went to Port Morseby and met up with his mother. She had relocated to Port Moresby sometime after the first Applicant moved to [City 1].

31. After being in Port Moresby for a few months, the first Applicant noticed a group of men at a local market. He heard them talking about him. Although he was sure he had never met them, they seemed to know that he was related to [Ms A]. These men were talking in Engan language which the first Applicant could understand. He heard them say that they had recognised him and they intended to attack him. He fled the market for safety. He later spoke to his mother who told him that she had heard rumours that it was not safe for the first Applicant to walk the streets of Port Moresby.

32. The first Applicant recalls that after he had departed PNG for Australia, his mother told him a group of people who were related to [Ms A] visited her house looking for him. He was told that they were very angry, and threats were made to harm him.

33. In conclusion, the claims by the first Applicant are that [Ms A] and her family targeted him with violence and hostility because of his uncle’s extra-marital affair; and that targeting continued from [City 1] down to Port Moresby where the first Applicant’s mother lived.

    Country information

34. It is claimed by the first Applicant that his aunt [Ms A] orchestrated her family to attack him in [City 1]. That was in retaliation because his uncle was having an extra-marital affair and [Ms A] thought that the first Applicant should have told her. The first Applicant also claims that he made his way from [City 1] to Port Moresby to stay with his mother. When in Port Moresby he overheard a group of men at the market discussing how they were going to attack him. At a subsequent time, he travelled to Australia and his mother’s house was visited by a group of people related to [Ms A]. They were searching for him.

35. The first Applicant claims that he fears returning to PNG because [Ms A] is seeking payback and wants him harmed. In Papua New Guinea, the problem of determining what is customary law is made even harder because of the cultural and ethnic diversity of its peoples. There are at least 720 different languages in PNG, consequently there are at least 720 different customary legal codes operating in the different areas. Therefore, the penalties and practices of the law throughout the country vary considerably from place to place.[29]

    [29]Pigs, payback, and the law in Papua New Guinea, Hobbs A, >

    The DFAT Country Information report (‘DFAT report’) for PNG provides that payback, or traditional compensation, is an act of retaliation that is usually carried out when one group has been harmed by another.[30] The DFAT report further provides that:

    The DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG. The basis for this is that tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.

    Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced.

    Land disputes are a common catalyst for unrest in PNG. Ninety-seven per cent of land in PNG is customarily held. Conflict typically escalates from territorial disputes into violence, with some incidents being ‘payback’ for previous incidents. While inter-tribal conflict has historically occurred, especially in the Highlands region, observers suggest that such violence has become markedly worse in the last few years due to the increasing prevalence of high-powered firearms, the willingness to target the elderly, women and children, and the fact that conflict is less governed by customary law than in the past. Inter-tribal fighting often results in the destruction of communal property and services, including health clinics, schools and transport infrastructure and in substantial numbers of internally displaced persons. Sources report national and provincial governments are disinclined to rebuild after such destruction.

    Observers have suggested that increased fighting in the Highlands should be viewed as a resort to self-help through violent means, in the absence of effective government alternatives for managing disputes peacefully. Police capacity and willingness to prevent and investigate tribal fighting is typically limited. In Hela province, which has a population of 400,000 people, there are just 83 Royal Papua New Guinea Constabulary (RPNGC) officers, as noted by Prime Minister Marape in response to the July 2019 massacre. Often the RPNGC are outnumbered and outgunned by warring groups and can only intervene at significant personal risk.

    Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there.[31]

    [30]The DFAT Country Information report, Papua New Guinea, 6 September 2022, page 2.

    [31]The DFAT Country Information report, Papua New Guinea, 6 September 2022, page 12, paragraphs 2.27 to 2.32.

1. The Tribunal accepts that the custom of revenge or ‘payback’ under the Wantokism system requires clans or tribes to retaliate against perceived wrongs committed against other clan members, creating a cycle of retribution which is difficult to break.[32]

   [32]Papua New Guinea Country Report 2016, Bertelsmann Stiftung’s Transformation Index, 2016, page 5 and page 14; Country Reports on Human Rights Practices 2017. Papua New Guinea, United States Department of State, 20 April 2018.

2. The available country information indicates that there are a varied and wide range of issues that can trigger ‘payback’ action within PNG and in understanding his application, what the first Applicant claims happened is not categorised as an inter-tribal fight over a land dispute, and nor is it one group of people seeking retribution for a killing. His claim relates to his aunt [Ms A] seeking retribution because she considered that he should have told her about her husband’s extra-marital affair.

   REFUGEE FINDINGS

   Real chance of serious harm

3. 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:[33]

   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.[34]  

   [33]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.

   [34]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.

4. A fear of persecution may be well-founded for the purposes of the Refugee Convention even though the persecution is unlikely to occur. A real chance of something happening equates to a risk that is more than remote, that is, being a risk that could not be described as being remote, farfetched or fanciful,[35] and the test for ‘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.[36]

   [35]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429.

   [36]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

5. The Tribunal had the opportunity to assess the credibility of the first Applicant in a review hearing. A consideration for the Tribunal was the extraordinarily long time between when he made his initial claims within his application, to when he appeared before the Tribunal. That period is approximately six and a half years. Apart from some very minor inconsistencies in his evidence, which can be expected given the passage of time, the Tribunal found that the foundation of his claims remained solid. Given the delay just outlined, the Tribunal finds that any doubt about the claims should fall in his favour in regard to his credibility.

6. In SZLVZ v Minister for Immigration and Citizenship, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[37] A similar approach is endorsed in the Department’s Refugee Law Guidelines and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’). Therefore, after careful assessment of his claims, the Tribunal accepts that he was assaulted as claimed and that members of his aunt’s family were searching for him to extract retribution, or payback, at the behest of [Ms A].

   [37]SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816, [25].

7. When applying an overall balanced assessment of the evidence and the claims made by the first Applicant, along with applying careful consideration to the totality of the evidence, the Tribunal is satisfied enough to make a finding that if the first Applicant returned to PNG there is a real chance of him experiencing serious harm in the form of payback from his Aunt and or her family members.

   Best interests of children

8. The United Nations Convention on the Rights of the Child provides that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.  It is recognised that for the full and harmonious development of a child’s personality, the child should grow up in a family environment, in an atmosphere of happiness, and with love and understanding. There is a legitimate expectation that the principle relating to the best interests of a child as provided within the United Nations Convention on the Rights of the Child[38] shall be treated as a primary consideration by the decision-maker in matters where the best interests of children whose interests could be affected by decisions.[39]

   [38]Article 3(1).  The Convention was ratified by Australia on 17 December 1990 and entered into force for Australia on 16 January 1991.  By an instrument of declaration made 22 December 1992, the Commonwealth Attorney-General declared the Convention to be an international instrument relating to human rights and freedoms for the purpose of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

   [39]Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

9. The Tribunal has had the opportunity to assess the application for a Protection visa lodged by the second Applicant’s mother, in which the second Applicant is also party. In that separate decision, the Tribunal gave consideration to the claims made in the application relating to the second Applicant’s mother and reached a decision to remit that matter back to the Delegate on a finding that both the second Applicant and her mother meet the definition of refugees within the criteria set out in the Act.

   decision

10. The Tribunal remits the matter for reconsideration with the direction that the Applicants satisfy section 36(2)(a) of the Act.

    Wayne Pennell
    Senior 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.

    …