1906026 (Refugee)

1906026 (Refugee) [2022] AATA 1971 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906026
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Nora Lamont
DATE:11 May 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 11 May 2022 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – member of particular social group – abused and separated women – fear of harm from ex-husband – customary marriage – control and abuse – inconsistent and sometimes false claims and evidence – return to relationship after first stay in Australia – open and honest evidence and clear understanding of responsibilities at hearing – country information – police limitations, inaction and corruption, state protection ineffective and relocation not feasible – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a [Age]-year-old married woman from Port Moresby Papua New Guinea (Hereafter referred to as PNG) who has a [Age]-year-old child. She claims to fear her ex-husband [Mr A] whom she first met in 2009 and married in 2011. [Mr A] was a much older man who had been previously married with two children. [The applicant] claims [Mr A] was controlling and abusive and she was subjected to abuse and was hospitalised on several occasions. She managed to come to Australia on a scholarship and completed a Diploma. She fears upon return to PNG her ex-husband [Mr A] will harm her or her [child].
[The applicant] was untruthful during her Departmental interview and the delegate found that the applicant’s relationship with [Mr A] lacked substance given the applicant’s inconsistent, implausible, and contradictory accounts of her relationship which led the delegate to believe that the applicant was never married to person called [Mr A].
The questions before the Tribunal are whether [the applicant] suffered harm at the hands of her ex-husband [Mr A], will she be harmed or killed by her ex-husband [Mr A] upon return to PNG, does she meet the Refugee criterion and if not does she meet the complementary protection criterion?
[The applicant] appeared before the Tribunal on 5 April 2022 at 11 am to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband. The applicant was represented in relation to the review. The representative attended the hearing.
[The applicant] first arrived in Australia on a SC-572 (Student visa) [in] August 2013 and has since departed and arrived multiple times to and from Australia. She has been onshore [since] December 2016.
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 are mostly centred around her ex-husband and her fear of reprisal from him and his associates. The summary below is taken from the Department summary and is accurate: [1]
[1] [Department file number] page 2 of 15
·The applicant married [Mr A] and throughout their marriage he was abusive towards the applicant.
·[Mr A] belted the applicant numerous times resulting in hospital admissions.
·On one occasion he accused her of having an affair, put a rope around her; dragged her onto the road publicly humiliating her. He then dragged her inside, put an axe to her head and threatened to behead her.
·The applicant reported the abuse to the police however the investigation never went ahead because (the applicant believes) [Mr A] paid the police.
·The applicant fears if returned to PNG [Mr A] will kill her.
The applicant has added several other claims since her application was processed and they are summarised as follows: [2]
·The applicant suffered a miscarriage.
·Her father was accused of sorcery and her mother was raped.
[2] AAT Folio
Based on a copy of her PNG passport on the Departmental file I am satisfied that the applicant's claims should be assessed against PNG for the purposes of s.36(2)(a) and as the receiving country for the purposes of s.36(2)(aa).
With no evidence to the contrary, I find that the applicant has no right to enter or reside, either temporarily or permanently, in any safe third country for the purposes of s.36(3) in the Act.
There are no non-disclosure certificates on the applicant’s file.
Before me as I made my decision, I had the following documents:
·AAT Folio.
·Departmental File.
·Character References from: [Ms B], [Pastor C], [Mr D], [Ms E], [Mr F].
·Facebook posts/messages from [Ms G].
·Photos of applicant’s cousin’s murder.
Tribunal Hearing
At the beginning of the hearing, I asked the applicant why she denied her brother [Mr H], at the Departmental interview. She said she made a mistake she didn’t know what to say and as he had applied for a protection visa, she didn’t want to hurt his case. She felt overwhelmed and did not have any legal advice before the interview. [Mr H] is back in PNG now and living there.
We spoke about the inconsistencies in her evidence before the Department including her family names and addresses. She said there was confusion around her family and names and that her family names had been wrongly recorded. Her father is [Mr I] and her mother is [Ms J]. She was customarily adopted by her Uncle when she was 6 years old as her father had had locked her in the house and so her Uncle took her to Port Moresby. She explained that as she was customarily adopted and living with her Uncle there was confusion at the Department interview.
Around this same time her father was accused of sorcery and claims of murder and some people in the village set fire to their house and raped her mother. Eventually her family relocated to Port Moresby. (She was already living with her Uncle).
She met [Mr A] and started a relationship with him in 2009 and they were married on Easter weekend. She said she didn’t have a dress or anything like a ceremony but there was an exchange of money/gifts. She said at first, he was nice then he started to get possessive and violent. In 2012 he started kicking her while she was pregnant, and she had a miscarriage. He further beat her tied a rope around her neck and dragged her into the street.
She thought he was a monster but thought maybe it was the way she treated him as he was old and drank all weekend. She went to her parents for help, but they were unable to assist. In 2013 she managed to get a scholarship through her Uncle who is a Pastor to Australia and was able to come over and do a diploma.
I asked her how he felt about her being in Australia and she said he called all the time and she said she would return. I asked her why she returned if he was so abusive? She said that she had to complete national service upon return. Upon return it got worse and he accused her of having an affair and she was able to return to Australia in 2016 where she applied for her protection visa.
I asked her about her cousin’s run in with [Mr A]. She said in 2017 he came to her cousins looking for her and belted up her cousin. Pictures were in the Departmental file.
Conclusion and Findings
In assessing the credibility of the applicants' claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims and I have regard to the Tribunal's guidelines on the assessment of credibility in protection visa matters.
If I make an adverse finding in relation to a material claim made by the applicant but I am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true. However, I am not required to accept uncritically any, or all of the allegations made by an applicant. Further, I am not required to have rebutting evidence available to me before I can find that a particular factual assertion by an applicant has not been made out.
As I am mindful that, where I cannot make a finding with confidence, I must proceed to assess the claim on the basis that the claim might possibly be true. Whilst I did and do have some misgivings about the applicant’s evidence particularly the fact that she is unable to provide the Tribunal with any evidence of [Mr A], overall, I found the applicant to be contrite about her previous falsehoods and quite open and honest during the hearing. She is now married with a baby and has a clearer understanding of her responsibilities in relation to her application for protection.
I accept that she was in a relationship with [Mr A] and that she may have customarily married him, but I do not accept that there is a legal/statutory marriage.
I accept that the applicant was abused by [Mr A] and violence was perpetrated upon her. The reasons for my acceptance are based less on evidence before me and more upon the credibility of the applicant. Whilst she has not told the truth in the past or has not answered the questions, I found her to be very forthcoming and not contrived whilst giving her evidence to me. She was consistent and I have weighed that up with the country information indicating domestic violence is at an epidemic level in PNG.
I accept that her family was involved in sorcery claims as they are common in PNG. It stands to reason that after the accusations made against her father and the rape of her mother the family moved to Port Moresby.
DFAT assesses that those accused of sorcery or witchcraft in PNG face a high risk of societal discrimination and violence. This discrimination may include being illegally detained, beaten or tortured, having their possessions stolen, being forced to leave their communities, or being killed. [3]
[3] DFAT Country Information Report Papua New Guinea 2017 page 19
In this case I am unable to accept the documents as in her evidence she stated that her father tried to help her with the police documents, but the police want money and whilst her family attempted to help her with the documents, they are not accurate. I do however accept her evidence in relation to her family attending to the police to get some help for her. Independent Country Information about the police response is as follows:
Police rarely take family violence seriously, say advocates and observers and the women Human Rights Watch interviewed. They too often refuse to pursue investigations or arrest people who commit family violence, even in cases where the violence is severe, including attempted murder, serious physical harm, and repeated rape. Sometimes police tell victims it’s a “family matter” and send them away. Or they refuse to do anything until they have a medical report, rather than gathering evidence provided by the victim in front of them, often with visible wounds. They sometimes demand money, often “for fuel,” from victims before taking any action. Often they simply ignore cases that occur in rural areas, where there is little government presence and where police might have to travel long distances to conduct investigations, telling victims it is their responsibility to bring the perpetrator to the police station.
When police do get involved in family violence cases they typically mandate mediation for the couples involved, in contrast with international best practices, which highly encourage arrest and prosecution. Even in the new Family and Sexual Violence Units, the usual approach is for police officers to sit a survivor down with the attacker and hammer out an agreement in which the attacker promises to stop being violent, and perhaps to pay some compensation. This happens even when there is clear evidence that a serious crime has been committed. It happens when the victim does not believe that the attacker will stop the abuse. It happens when the attacks continue between mediation sessions and the victim tells the police that the attacks are continuing. It happens even when the victim tells the police she wants the attacker to be prosecuted and imprisoned.
Survivors of violence face difficulty securing protection orders. Police often fail to tell survivors about protection orders or refer them to court to seek one in cases where they would have been appropriate. Survivors who do seek protection orders often encounter delays and costly fees in the courts.
When cases of family violence make it to court at all, they usually end up in village courts, which mediate and adjudicate family matters with the goal of reconciliation, not district courts where serious crimes are prosecuted. In village courts, prosecution—and accountability—is not on the table.
There is a dire lack of services for people requiring assistance after suffering family violence. Most areas have no safe houses, and no area has enough. Most counselling focuses on reconciling the survivor with her abusive partner. Qualified psychosocial counsellors are all but non-existent. Case management is rarely provided. Legal aid is almost entirely absent.
The result is that women who seek help may see little change in the violence. “My husband continued bashing me,” a woman named Kere in the Highlands told Human Rights Watch. He promised to stop in the presence of police officers, she said, but continued to beat her when they got home. “He was hitting me between counselling sessions.” [4]
[4] Bashed Up: Family Violence in Papua New Guinea | HRW
The applicant fears if she was returned to PNG with her daughter [Mr A] would find her and kill her. She stated people talk and they will know when she returns. Having had PNG cases before me before I am aware that there is a level of gossip and monitoring that goes on in communities and accept that she would be found out as soon as she returned.
The applicant cannot return to PNG as she would face violence from her ex, and she will not be able to avail herself to the state for protection. A woman is beaten every 30 seconds in PNG and more than 1.5 million people experience gender-based violence each year. [5]
[5] Women in Papua New Guinea are suffering an epidemic of violence – the government must act | Stephanie McLennan | The Guardian
Cumulatively and after the hearing I accept that the applicant was in a relationship with [Mr A], he was abusive and violent and would find her should she return to PNG.
Membership of a Particular Social Group
The applicant is a member of a Particular Social Group: Abused and Separated Women in PNG. The group is identifiable by a common characteristic, namely gender, significant abuse and marital separation. The characteristic common to all members of the group is not a shared fear of persecution. I am satisfied that the possession of these characteristic distinguishes the group from society at large. I accept that Abused and Separated Women in PNG are a particular social group for the purposes of the Act: see section 5L of the Act.
Indeed, the DFAT report specifically identifies women in PNG as a group facing a high risk of gender-based violence. Women are abused in PNG at a very high rate and current country information backs up the applicant’s evidence that she would suffer harm if returned to PNG. DFAT reports the following about women and abuse in PNG: [6]
3.32 Article Five of the Constitution calls for equal participation by PNG’s women citizens in all political, economic, social and religious activities. The Office for the Development of Women, which sits within the Ministry of Religion, Youth and Community Development, has responsibility for women’s issues. The National Council of Women Act (2010) mandates the National Council of Women (NCW) to promote equal participation of women in society, and to support the government to eliminate all forms of discrimination against women. In addition to the NCW, several other civil society organisations are also dedicated to improving the situation of women in PNG. A number of women hold senior positions in business, the professions, and the civil service. At the time of publication, two government departments had female Departmental Secretaries.
3.34 Levels of violent crime against women are extremely high across PNG. Domestic or family violence is particularly endemic. The precise number of women who experience violence at the hands of a partner or family member is unknown – statistics are unreliable, and there is a social stigma in PNG about reporting. Human Rights Watch (HRW) published a report on family violence in PNG in November 2015 that found that the problem continued to be pervasive throughout the country. An earlier survey, published in 2013, found that 80 per cent of men in Bougainville reported that they had perpetrated physical and/or sexual violence against a partner. A March 2016 report from Medicins Sans Frontieres (MSF) detailed how a dire lack of protection mechanisms, a weak justice system and a culture of impunity endangered the health and lives of victims of violence even if they managed to reach medical care.
3.35 The November 2015 HRW report found that police and prosecutors rarely pursued criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Police often demanded money from victims before they would act, or simply ignored cases occurring in rural areas. Police appeared reluctant to refer survivors for protection orders, and survivors who sought protection orders frequently encountered delays in the courts. When police did get involved in family violence, they typically mandated mediation and reconciliation for the couples involved.
3.36 The November 2015 HRW report found there was a dire lack of services for people requiring assistance after suffering family violence. Most areas had no safe houses, and no area had enough. Qualified counsellors were largely non-existent, case management was rarely provided, legal aid was almost entirely absent, and there was no safety net to assist survivors, particularly those with dependent children, who needed temporary support and assistance to leave their abusers and become financially independent.
3.37 The Family Protection Act (2013) makes family violence a crime, punishable by up to two years and/or a fine of PGK6,000 (AUD2,750). The Act also created new mechanisms, including establishing Family and Sexual Violence Units (FSVUs) in police stations and Family Support Centres in hospitals, to protect and assist victims of family violence. As of the publication date, 15 FSVUs were operational nationwide, staffed primarily by female RPNGC officers. All were under-resourced, and only able to operate for limited hours despite considerable demand for their services. Although the Act came into force in March 2014, as of the publication date it was yet to be fully implemented.
3.38 A number of factors act as barriers to the full participation of women in the workforce in PNG. These include cultural stigma against women’s education or employment; gender discrimination; nepotism; the risk of violence and sexual abuse; high levels of female illiteracy; and low levels of female education. Restrictions to women achieving a good education include underage marriage, unwanted pregnancies, and lack of financial support.
3.39 DFAT assesses that women across PNG have a high risk of societal discrimination due to long-standing traditional values and gender roles that restrict their ability to participate fully 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 the Highlands provinces are at particular risk, although violence against women occurs nationwide. Women subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.
[6] DFAT Country Information Report Papua New Guinea (10 February 2017).

The applicant as a woman cannot relocate anywhere in PNG as PNG is tribal and there is nowhere, she would be able to go without the fear of violence or of being found. DFAT reports while relocation is possible it isn’t feasible for a variety of reasons including tribal issues, high unemployment, and violence. [7]
5.29 Internal relocation in PNG is generally possible – people can and do regularly migrate to big cities, either in search of economic opportunities, or to escape tribal and other violence or natural disasters. A credible international source estimated that there are as many as 100,000 internally displaced persons in PNG. As many as 50 per cent of Port Moresby’s population comprises of internal migrants residing in shanties. Those who relocate to Port Moresby and other major cities find very high unemployment – 80-90 per cent in the formal sector in Port Moresby – and very high levels of crime, including tribal fighting.
5.30 However, logistical and security issues make internal relocation within PNG more difficult. In many instances, community access to provincial and major capital centres is hampered by a lack of effective and trafficable road transport infrastructure. Travelling overland necessitates passing through other tribal areas, which can have security implications. Women who need to move within PNG to escape violence are likely to lose all of their possessions, including titles to land. Tribal feuds can and have relocated from their original location - there have been cases of payback killings carried out in major cities. Those fleeing accusations of witchcraft are particularly vulnerable – rumours can quickly travel from the Highlands to major cities, and those accused are less likely to be able to obtain the support of wantok networks.
[7] DFAT Country Information Report Papua New Guinea (10 February 2017).
State Protection is not available for women in PNG. Police corruption, tribal feuds, and lack of resources confirms the contention that a woman in PNG would not be able to avail herself to the state for protection. DFAT notes the following in relation to state protection: [8] The ability of the police in Papua New Guinea to provide protection is limited. A lack of resources, including staffing, and clan rivalries undermine the effectiveness of the Royal Papua New Guinea Constabulary (RPNGC). PNG has one of the lowest police-to-population ratios in the world and police presence in some remote areas of the country is negligible. Human Rights Watch recently reported the ratio is one police officer to every 1145 people, when the UN recommends one officer for every 450 people. In many locations, police have lacked sufficient personnel and resources to prevent, or effectively respond to, societal violence including tribal violence.
[8] DFAT Country Information Report Papua New Guinea (10 February 2017).
In cumulatively considering the applicant's circumstances and the country information about violence towards women in general, I accept the applicant has a well-founded fear of persecution due to the ineffective protection measures available to her throughout PNG, as required by s.5J(2) and because the applicant has a real and appreciable chance, and not a remote or far-fetched one, of persecution for a reason mentioned under s.5J(1)(a) that relates to all areas of the applicant's receiving country, namely PNG, pursuant to s.5J(1)(c).
Accordingly, I find that she has a well-founded fear of persecution for reason of her being a member of a particular social group of separated Papua New Guinean women subjected to abuse and violence as she satisfies s.5J(1)(a), (b) and (c), throughout all areas of her receiving country.
Considering all of the above circumstances, both individually and cumulatively, I find there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for reason of her being a member of a particular social group of separated and abused Papua New Guinean women. Her fear of persecution is well-founded as required by s.5J of the Act and therefore she is a refugee within the meaning of s.5H(1) and s.36(2)(a).
As I have determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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 1971

11 May 2022

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