1909741 (Refugee)

1909741 (Refugee) [2022] AATA 2414 (24 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Bunu Sharma Gautam
CASE NUMBER:  1909741
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Nora Lamont
DATE:24 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 24 May 2022 at 10:42am
CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea – fears harm as a woman and single mother in Papua New Guinea – fears harm from tribes – expert opinion on inter-tribal conflicts – applicant has a well-founded fear of persecution –effective protection measures are not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 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 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 4 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 3 February 2017.
The applicant appeared before the Tribunal on 6 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Identity
The applicant presented her passport and by the applicant’s own evidence, and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Papua New Guinea and has assessed her claims against that country in relation to s.36(2)(a) and 36(2)(aa) of the Act.
There is no evidence before the Tribunal that the applicant has a legally enforceable right to enter and reside in another country other than Papua New Guinea and therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act.
There is a 438 non-disclosure certificate on the applicant’s file. (please see section below on 438 Certificate.
s.438 Non-Disclosure Certificate
There was a s438 non-disclosure certificate on the applicant’s file. I gave her and her representative a redacted copy of the dob in calls. They stated that [the applicant] was working illegally and had overstayed her visa. The applicant responded that she did not work at all as she was not allowed to work, and she did not overstay her visa.
The Tribunal checked the applicant’s movement records and she was not in Australia and overstaying she did in fact come back into Australia on a valid visa. There is also no information before the Tribunal that the applicant was working illegally. I have given the s438 Certificate and it’s contents no weight in my assessment.
Applicant Background
The applicant was born in [year] in [City 1], Enga Province and is widowed following the death of her husband in 2007. She is Melanesian, Kii Tribe whilst her mother is from the Karl Tribe and she identifies as a Christian. She has three biological children and four customarily adopted children. She completed [a specified grade] at school and then became self-employed [and] was married around the age of [age]. She moved onto the property which forms part of her claims when she was married and her husband’s sister who is since deceased gave the couple the property. The home is located in a suburb of Port Moresby and is a high crime area.
The issue in this case is whether the applicant will be harmed in Papua New Guinea by the Ambusi Tribe, the Kii and Karl Tribes, or as a single mother. For the reasons that follow the Tribunal has concluded that the matter should be remitted for reconsideration.
Delegate Refusal
The delegate was not satisfied that [the applicant] is a refugee as defined by s5H(1) of the Act. Therefore, they were not satisfied [the applicant] is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act.
Submissions
The Tribunal has before it the following documents and submissions and all other submissions contained in the AAT Folio and the Departmental file:[1]
·Statutory Declaration of [Mr A].
·Post interview submissions.
·Statutory Declaration [the applicant].
·Emails from [the applicant] .
·Expert report [Dr B].
·Representatives’ submission.
Claims
[1] [file number deleted] & AAT Folio.
The following is a summary of the applicant’s claims from her Protection Visa application, her Departmental interview and the Tribunal hearing: [2]
[2] [file number deleted] & AAT Folio.
·On [date] November 2015 a group of street thugs robbed her house and stole items belonging to her adopted son [Mr C]. [Mr C] then found the people who were responsible beat them and detained them at the local police station.
·On the evening of [date] November 2015 her neighbour [Mr D] was murdered in his home. The applicant believes that [Mr D]’s tribe believed he was killed in “error” and that the perpetrators were actually intending to kill her son [Mr C] as payback for the assault of arrest of the suspects for the break in.
·[Mr D]’s tribe the Ambusi Tribe blamed her for [Mr D]’s death, threatened her, and sought to kill [Mr C] as revenge. She was particularly vulnerable as she was a single mother and her husband’s family did not support her.
·On [date] November the Ambusi Tribe came and cut her banana trees, harvested her betelnuts, severely damaged her car, and shut the doors and gates to her house forcing her and her children to leave. For two weeks they went into hiding.
·On [date] November 2015 a suspect was arrested for the murder of [Mr D] and [Mr C] her adoptive son went to mediation at [a] police station with members of both the Lakowe Tribe and the Ambusi Tribe. Both tribes blamed [Mr C] with the Lakowe tribe very angry that one of their tribesmen was accused of the murder.
·The matter went to court and [Mr C] was found innocent. However, the Ambusi Tribe wanted compensation from her and [Mr C] demanding 100,000 kina and 70 pigs.
·The Ambusi continued to harass and threaten her and her family and threw a BBQ plate at her daughter. She lodged a police report, but the police were unable to stop it from happening.
·In September of 2016 the Ambusi broke through her gate and demanded compensation or else [Mr C] would be killed. She left in fear and travelled to [cities], and [City 1] but in November of 2016 she travelled to Australia out of fear.
·Her son [Mr C] and her other children live in fear and one of her daughters was raped and another daughter witnessed a boy from her school being killed by the Kii tribe against a Karl tribesman.
·Her father was a member of the Kii Tribe and her mother was a member of the Karl tribe and they are constantly in conflict with each other in [City 1] and she fears harm from both tribes for her association with both.
·She fears harm as a woman and single mother in Papua New Guinea.
·She had a land dispute with her husband’s family.
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
Tribunal Hearing
[The applicant] told me that the daughter of her sister-in-law came to her and claimed her property as her own, but it was her property and she struggled for many years to get the title of the land. She had to fight for it and attend the land titles office and it was hard as a single mother. She didn’t have much to do with her husbands’ family after he passed away. She did eventually get the title to the land.
For purposes of this decision and claim of her property dispute in regard to her husband’s family this has been resolved and even though she claims the Ambusi are on the land now, she does hold the title, so I have not engaged this claim as it has been resolved.
[The applicant] stated she was sleeping the night of the break in and they took [Mr C]’s laptop, phone and external hard drive. The next day [Mr C] found out who was selling his phone (there were two others involved) and he belted him up. Then he took him to the police. That night her neighbour [Mr D] was murdered. [The applicant] said the tribe was looking for a way to kill [Mr D]. His murder was a tribal murder and they used [Mr C] as an excuse to kill [Mr D] and blame [Mr C].
The Ambusi Tribe came and cut her banana trees, harvested her betelnuts, severely damaged her car, and shut the doors and gates to her house. The applicant was unable to stay and had been forced into hiding.
A suspect was arrested for the murder of [Mr D] and [Mr C] her adoptive son went to mediation at [a] police station with members of both the Lakowe Tribe and the Ambusi Tribe. Both tribes blamed [Mr C] with the Lakowe tribe very angry that one of their tribesmen was accused of the murder.
The matter went to court and [Mr C] was found innocent. But the Ambusi Tribe wanted revenge and compensation from her, and [Mr C] and they demanded 100,000 kina and 70 pigs. The applicant couldn’t pay the compensation and the Ambusi continually harassed her and her family. They threw a BBQ plate at her daughter. The Ambusi believe in an eye for an eye.
The applicant was not able to get the Ambusi off her property and they still remain there today. She had to hide, and her children were forced to move around and hide. A statutory declaration from her son [Mr C] indicates that things have gotten worse. [Mr C] says he is experiencing trouble with the Ambusi and he has attempted to come back to Australia, but his visas have been refused. He says that the applicant is not safe due to the tribal issues.[3]
[3] AAT Folio Statutory Declaration [Mr A] 10 May 2022.
The applicant spoke of being from both the Kii and Karl tribes and how they continually have conflict. She is caught in the middle as her parents are from opposing tribes.
We discussed the applicant’s children and how she could have left them behind. She said it was hard, but she had to flee, or she would be killed and that she speaks to them often and sends them money. They are all adults now and scattered around in hiding. Her daughter was raped and conceived a child of that rape and her daughters are struggling. I asked her about the [social media] posts that the delegate showed her indicating that her daughters were living a good life. The applicant said this was not their real life, that is what young people put on social media. The applicant provided the Tribunal with photos of her children in the village which was starkly different to the photos on social media.
We spoke about the applicant’s psychological well being and she said she is still seeing a psychologist and she was on some medication from the doctor, but it didn’t work.
The applicant said she cannot return to Papua New Guinea as a single woman as she will not have any support, no protection and she will be a target.
The Tribunal was given an expert opinion on the intertribal violence by [Dr B] which states the following: [4]
[4] EXPERT OPINION REGARDING THE LIKELIHOOD OF PAYBACK KILLING AFTER TRIBAL FIGHTING IN ENGA PROVINCE, PAPUA NEW GUINEA [Dr B].
I have been asked by [ORGANISATION 1 to comment on
the likelihood of ‘payback’ violence targeting their client following a tribal conflict in Enga Province,
Papua New Guinea.
My advice is that there is an acute risk of a payback attack in the area where the client lives. Enga
Province has been known for violent conflict since the 1950s and, since the national elections in
2017, tribal fighting affecting Kii tribe around Teremanda, where [ORGANISATION 1]’ client is from, has been the
subject of media reports.
The Mt Hagen office of the International Committee of the Red Cross (ICRC), among agencies to
intervene at Teremanda, is clear that rape is being used as a weapon of war, and has documented
other non-combatant injuries such as the mutilation of children with machetes and – a new
development – attacks with hand grenades that have burned, killed or mutilated women and
children.
If [ORGANISATION 1]’ client says she is in danger, she must be taken very seriously.
[Dr B] has extensive experience in this area, and I have given weight to his expert opinion in respect of my decision.
Findings
The Tribunal accepts that the applicant’s home was broken into, that [Mr C]’s equipment was stolen, that her neighbour [Mr D] was murdered, and she was blamed and that she had to flee Papua New Guinea for the following reasons.
First, the applicant’s claims have not changed over time. She has been consistent and concise about her claims. Secondly, the documentation and the country information is very strong which backs up her claims.
Further, expert opinion on inter-tribal conflicts and the danger the applicant faces shows that she would face violence upon return. Not only inter-tribal violence from the Ambusi but the ongoing conflicts between the Kii and Karl tribes to which she belongs too.
Conclusion
Intertribal violence and conflict are common in Papua New Guinea and I consider that [the applicant]’s evidence of ongoing tribal violence, murder and revenge are not exaggerated or made up for purposes of seeking asylum. The Common Claims Report published by the Department for Papua New Guinea provides the following information: [5]
Tensions between and within PNG’s hundreds of different groups occurs frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.
Inter-communal violence is endemic in the Highlands region of Papua New Guinea and outbreaks are common in Port Moresby and Lae. 2017 United Kingdom (UK) Foreign & Commonwealth Office travel advice for foreigners states generically that outbreaks of ‘tribal fighting’ are ‘common, especially in Port Moresby, the Highlands Provinces (particularly Southern and Western Highlands) and Enga Province’. Australia’s Department of Foreign Affairs and Trade (DFAT) reported in 2017 that tribal fighting is concentrated in the Highlands regions (where almost half of the country’s population lives) although outbreaks commonly occur in urban areas including Port Moresby. Tribal tensions lead to frequent outbreaks of fighting, rioting and looting, resulting in the destruction of property, displacement, serious injuries and deaths.
No statistics are available on casualties from tribal violence in PNG, and there are no reliable estimates of the number of deaths caused by tribal fighting in PNG. Despite this, a 2017 International Committee of the Red Cross (ICRC) documentary on tribal violence in the Highlands claimed that non-combatants were being increasingly targeted, and United States (US) Department of State reports on human rights practices in PNG in 2016-2019 asserted that the numbers of deaths - and Internal Displaced Persons (IDPs) - resulting from the ‘frequent violent tribal conflict in highland areas’ ‘continued to rise due to the increased availability of modern weapons’. The police minister said the murders in a weekend in July 2019 of about 30 people, including women and children, was an ‘unheard of’ escalation of tribal violence in its region in Hela province, where attacks tended to be confined to men. 21 people were killed (some beheaded), including a woman and two teenage girls, in January 2020 in Hela province, in a land dispute between two relatives.
Tribal violence occurs for a range of reasons including land issues, disputes over mining royalties, political concerns and accusations of sorcery and witchcraft. Another major cause is the custom of revenge or ‘payback’ under the Wantokism system. This requires entire clans or tribes to retaliate against perceived wrongs committed against fellow clan members, creating a difficult to break cycle of retribution. ‘Payback’ can also be remedied through the payment of traditional compensation to the victim or their family. Ethnic group leaders work with law-and-order committees, police and political representatives to restore peace and resolve the matters that sparked fights. In isolated rural areas, the police often tolerated intertribal violence, until the tribes themselves agreed to a negotiated settlement. A local correspondent of United Kingdom-based newspaper The Guardian asserted in February 2021, citing Hela provincial governor Philip Undialu, that the old ways of solving conflict - through tribal fighting, violent but limited by customary laws, where local authorities knew with whom to negotiate to solve problems swiftly and to limit bloodshed - were giving way to more unrestrained violence: ‘There is little “tumbuna pasin” - the ways of ancestors - remaining, and no authority with the power to intervene and de-escalate long-running feuds.’ Amnesty International recently claimed that ‘the lack of adequate policing was a factor in increased communal violence’ in 2020.
[5] Common Claims-Papua New Guinea (20 October 2021).

I have considered that the country information above supports the applicant’s contention that she has been targeted, she will be targeted and faces violence if she returns to Papua New Guinea.
I have also considered that single women in Papua New Guinea face harm based on their gender, and country information supports the applicant’s fear of harm. Women in Papua New Guinea are at particular risk, arising out of the cultural and systemic violence against women at all levels.
Country information demonstrates that the issue of violence against women is so widespread and devastating that [the applicant] would suffer significant harm should she be returned:[6]
Only a small proportion of women in Papua New Guinea who experience societal violence seek help from the police. The Papua New Guinea Demographic and Health Survey 2016-2018 found that 35 per cent of surveyed women who had experienced physical or sexual violence had sought help; most commonly seeking the help from their family (72 per cent had), and less commonly from their husband’s family (13 per cent), friends (11 per cent), neighbours (11 per cent), police (10 per cent), social work organisations (3 per cent) and doctors/medical personnel (3 per cent). 15 percent of surveyed women who had experienced both physical and sexual violence sought help from the police.
There are limited prospects for female victims of domestic and family violence to relocate toother areas of Papua New Guinea, including Port Moresby. Safe houses and shelters for women experiencing family violence are extremely limited, are often at capacity, and offer only short-term placements. For example, there are 8 shelters (3 of them opened in 2020) for abused women in Port Moresby. The 5 shelters open before 2020, run by faith organisations, often were at capacity, including the best shelter of this kind.444 In June 2020 it was reported that COVID-19 pandemic-related transportation restrictions, lack of personal protective equipment and limited financial resources had hurt operations at shelters across the country and forced ‘multiple’ shelters to temporarily close. There is also a severe lack of other services for women including access to qualified counsellors, case management, financial support, or legal aid. Lack of services, along with societal and family pressure, often force women back into violent homes.447 Relocation to larger cities and towns may also exacerbate a women’s vulnerability to violence. Traditional village familial networks (wantoks), which sometimes serve to mitigate violence, are weak and largely absent when locals relocate from villages to larger towns or Port Moresby.448 Women who internally relocate to escape violence are likely to lose all of their possessions, including titles to land.449 Social, cultural, political and economic discrimination against women is evident throughout PNG; even women in urban areas are considered to be second-class citizens.
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 10 February 2017.
[The applicant] has suffered harm in the past, but the assessment of protection is in fact a forward-looking assessment, what would happen to [the applicant] on her return to Papua New Guinea. Past experience can be a guide as to what would occur in the future, but it is only an aspect of the consideration.
In the circumstances of [the applicant], I consider that the subjective fear that she has for the future is objectively made out on the available country information. I consider the violence that she faces does constitute significant harm arising out of her membership of a particular social group single mothers in Papua New Guinea and inter-tribal conflict.
I find that [the applicant] has a real chance of serious harm upon return to Papua New Guinea as a single mother and I find she has a well-founded fear of persecution for this reason.
I have considered whether [the applicant] can relocate to avoid the harm she fears in her home area. DFAT states that while people can and do internally relocate it is difficult and dangerous and especially so for a single woman:[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.
Further country information concludes:[8]
Although people regularly internally relocate within Papua New Guinea to escape intercommunal (or ethnic or tribal) fighting, conflicts from other regions sometimes extend to urban centres including Port Moresby and Lae. There are clear examples of tribal feuds migrating to urban areas; however, it is difficult to determine the extent of the issue due to the wider environment of pervasive crime, the complexity of motivations behind violent incidents, and the underreporting of crimes in PNG. People regularly migrate to urban areas to escape tribal violence. Inter-communal (tribal) violence has been known to restrict freedom of movement in the Highlands: in its immediate aftermath its participants and victims may go into hiding. As of 31 December 2016, according to Norway’s Internal Displacement Monitoring Centre (IDMC), 8400 people were internally displaced in PNG by conflict and violence; of these, 290 were newly displaced in 2016. IDMC’s estimate aggregated International Organization for Migration (IOM) caseloads of internal displacement caused by tribal conflicts between 2013 and 2016 in 7 provinces: Morobe, Eastern Highlands, Southern Highlands, Hela, Oro, East Sepik and East New Britain.437 In the period 2005-2016 in PNG, according to a November 2016 IOM report, emergency and disaster incidents resulted in the displacement of 75,449 people: including tribal conflicts, which displaced 8420 people - ‘in Southern Highlands (4,516), Eastern Highlands (1,590), Morobe (1,630), East Sepik (265), Hela (228), Oro (101) and East New Britain (90)’ - and land disputes, which displaced 3286 people in the NCD. Tribal feuds can and have relocated from their original location, and there have been cases of payback killings carried out in major cities. There are news reports in recent years where tribes from provincial regions, particularly the Highlands, have carried on tribal violence in other parts of the country, including in Port Moresby and Lae.
[7] DFAT Country Information Report 10 February 2017.
[8] Common Claims-Papua New Guinea (20 October 2021).
I have also considered whether [the applicant] can avail herself of state protection. I note that the ability of the police and other state actors is limited in Papua New Guinea. I consider given current country information that state protection is not available for the applicant. DFAT concludes the following: [9]
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.
[9] DFAT Country Information Report 10 February 2017.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
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 2414

24 May 2022

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