1910630 (Refugee)

1910630 (Refugee) [2023] AATA 2288 (6 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1910630
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:James Lambie
DATE:6 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 April 2023 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – accused of using sorcery or witchcraft causing death of villager and husband – tied to stake to be burned but escaped – credibility issues – admission of fabricated claims – subsequent denial – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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 8 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 25 October 2017. The delegate refused to grant the visa on the basis that there was insufficient evidence that the applicant was a person to whom Australia has protection obligations.
The applicant appeared before the Tribunal on 21 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tok Pisin and English languages.
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.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant claims to be [age] years old and a national of Papua New Guinea.
On 11 July 2017, the applicant was granted a FA-600 Visitor visa
The applicant first arrived in Australia [in] August 2017.
On 25 October 2017, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa.
On 8 April 2019, the applicant was notified that the Department of Home Affairs had refused to grant his application for a protection visa in a decision made on the same date.
On 29 April 2019, the applicant applied for merits review of the Department’s decision.
Claims:
The applicant’s claims are summarised in the delegate’s decision and the applicant’s protection visa application.
The applicant claims that, on [date] February 2017, a young man in her village was found dead in his home. She claims that relatives of the young man accused her of using sorcery or witchcraft to cause his death.
The applicant claims that relatives of the deceased and other community members sought to take her for questioning but that her husband and two of his brothers resisted and the community members backed down. She claims that the community members warned her that she would be held responsible should there be any further deaths in the community.
The applicant claims that, in the afternoon of [date] April 2017, her husband died while she was selling [products] in the marketplace. She claims that a group of men abducted her, stripped her naked and tied her to a stake. She claims that these men told her that she would be burnt alive for using sorcery to cause the deaths of first the young man and then her husband.
The applicant claims that she was kept tied to the stake while the men kept her under guard and prepared fuel for the burning. She claims that, at around 2am, one of the men untied her and allowed her to escape.
The applicant claims she managed to find her way to a nearby village where she was taken in by the family of the local pastor, who clothed her and helped her make her way to her parents’ village.
The applicant claims that, after she had been in her parents’ village for about three weeks, word reached the village that she was being sought members of her community, who had demanded that the elders of the village hand her over. She claims that the elders intended to hand her over to avoid conflict, but that her brother helped her to escape and she subsequently made her way to Australia.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application, which was lodged on 25 October 2017;
·The applicant’s identity documents being a copy of her passport issued by Papua New Guinea provided to the Department;
·The protection visa decision record dated 8 April 2019 (the delegate’s decision record);
·The application for review form dated 16 April 2018 but received 29 April 2019;
·Department file [number] concerning his protection visa application; and
·Documents submitted with his FA-600 Visitor visa application.
Country of reference / receiving country:
The applicant claims to be a citizen of Papua New Guinea. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Papua New Guinea is her country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 21 March 2023 to give evidence and present arguments.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a protection visa, the Tribunal discussed with the applicant that to be granted a protection visa she must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee she must have a well- founded fear of persecution in Papua New Guinea. This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if she returned to Papua New Guinea. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Papua New Guinea.
The Tribunal discussed her claims as summarised in his protection visa application, written claims and the delegate’s decision. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
The Tribunal asked the applicant if she had read and understood the Department’s decision. She said that she had. The Tribunal asked if she understood why the application had been refused. She said that she did. The Tribunal suggested that the Department’s decision had been based on certain things she had said at an interview with a Departmental officer. She said that certain things she told the Department may have been lost in translation.
The Tribunal suggested that it would again summarise the protection claims she had made so that she could confirm that they were the claims she was continuing to make. The Tribunal said that she had claimed that a young man was found dead on [date] February 2017 and that she had been blamed for using sorcery or witchcraft to bring about that death. She said that was true. The Tribunal said that she had then claimed that she was taken for questioning, which did not proceed because her husband had interceded on her behalf, although she was warned that she would be held responsible for any further deaths. She said that was true. The Tribunal said that she had then claimed that, at 3pm on [date] April 2017, she was accused of using witchcraft of bringing about the death of her husband. She said that was true. The Tribunal said that she had then claimed she had been stripped and threatened with being burned at the stake, and had subsequently escaped. She said that was true. The Tribunal said that she had then claimed that she learned that her community was seeking to have her returned to them, but she escaped with the assistance of family members and made her way to Australia. She said that was true. The Tribunal asked her to confirm that all of those claims were true. She said they were.
The Tribunal asked if, when interviewed by the Department, she had told Departmental officers that her claims were untrue. She said that that arose from an interpretation error. The Tribunal asked what she had meant to say to the Department. She said that she would prefer to do it in her own language. The Tribunal said that extensive attempts to find an interpreter in the Melpa dialect had failed and that she should try to do her best in Tok Pisin. She was invited to take her time.
The applicant said that the story the Tribunal had related was the true story, but that she had got confused at the Departmental interview and had just said ‘no’ to their questions. The Tribunal suggested that that was not the way it happened, according to the details in the Departmental decision. The decision records that she admitted the claims were not correct. She said there were a lot of people speaking and her responses got lost in translation. The Tribunal suggested that the record was that she admitted that her claims were fabricated in their entirety by the person who had completed her protection visa application for her, and who also obtained her national ID card and her passport. The Tribunal asked if that was true. She reiterated that she had got confused and just said ‘no’ to everything. The Tribunal suggested that she had given detailed information about the fabrication of her claims. She maintained that she had been confused.
The Tribunal asked if she could tell it the true story. She stated her claims in essentially the same terms as those in her protection visa application and summarised above. She added that an uncle had arranged for the identity documents she needed to travel and included her on the list of a travelling [group].
The Tribunal asked if her identity documents were accurate. She said that they were. The Tribunal asked if she was born in [year]. She said she was. The Tribunal asked if she had family in Australia. She said there was a boy who was the son of her husband and her first wife. She said the first wife had died and then his father (her husband) had died. The Tribunal asked for the name of the first wife. She said she did not know.
The Tribunal asked if her husband’s name was [Mr A]. She said it was, but he died on [date] April 2017. The Tribunal asked if what she had previously told the Department, that someone else had prepared her application and fabricated her claims, was untrue. She said that someone else had prepared her document, but her claims were true. The Tribunal asked if she had admitted to the Department that her husband was still alive. She said she did not understand. The Tribunal asked if she had admitted to the Department that, at the time of the interview, her husband was still alive. She said she did not understand the question and that everything she had claimed was true. The Tribunal asked if her evidence was that her husband was definitely dead on [date] April 2017. She said that was absolutely true.
The Tribunal put it to the applicant that she first applied to come to Australia on a Visitor visa and arrived in Australia [in] August 2017. She said that was true. The Tribunal put it to her that, on that application, she had described herself as a pastor with [a church] in [location]. She said that was true but that when the sorcery allegations were made, she had to leave that role. The Tribunal asked where, in her statement, she mentioned being a pastor. She said that everyone was blaming her for the deaths so she lost her position. The Tribunal asked why this was omitted from her statement. She said it should have been included.
The Tribunal showed the applicant her incoming passenger card and said that she should consider it carefully. The Tribunal said the card was dated [date] August 2017. It suggested that the emergency contact she had given on that card was for Pastor [Mr A]. It further suggested that her husband was still alive on the date she entered Australia. It asked if she had anything to say to that. She said she did not. The Tribunal put it to her that her claim that her husband died on [date] April 2017 was incorrect. She said it was true. The Tribunal asked how she reconciled that claim with the incoming passenger card. It put it to her that her listing of him as the emergency contact was an indication that he was still alive on [date] August 2017. She did not respond. The Tribunal said if she could not explain it, it was likely to find that her claim about her husband’s death was untrue. She did not respond.
The Tribunal suggested that the admissions she made to the Department in 2019 that her claims were a fabrication reflected the true state of affairs. She said ‘yes’. The Tribunal asked if she accepted that her claims were a fabrication. She said she did. She said she could not read or write and someone had done everything for her. The Tribunal suggested that the narrative she had provided to it of her claims was simply a matter of her memorising a fabricated statement. She said that was right.
The Tribunal asked if there were any other matters the Tribunal should take into account. She said there were not and the hearing concluded.
CONSIDERATION OF Claims and evidence
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to 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 applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, and Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
As is clear from the summary of the applicant’s evidence at the hearing, the applicant has admitted that her claims were fabricated by the person who prepared her Protection visa application. She did not make any alternative or additional claims for protection.
Accordingly, the Tribunal does not accept that the applicant has a reasonable fear of persecution by reason of having been accused of engaging in witchcraft or sorcery, or for any other reason, or that she has presented any alternative reason to fear harm from any person or persons in Papua New Guinea,
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of having been accused of engaging in witchcraft or sorcery, or any other reason, if she returns to Papua New Guinea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Papua New Guinea. Accordingly, the Tribunal finds that she does not satisfy the criterion in s 36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The applicant having admitted that her protection claims were fabricated, the Tribunal considers it unnecessary to whether there is a real risk that the applicant will suffer significant harm by reason of her having been accused of witchcraft or sorcery as a necessary and foreseeable consequence of her being returned to Papua New Guinea.
The applicant having submitted no other reason to fear harm in Papua New Guinea, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Papua New Guinea now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Her fear of persecution is not well-founded as required by s 5J of the Act and therefore she is not a refugee within the meaning of s 5H of the Act.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Papua New Guinea, there is a real risk that she will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) Protection (subclass 866) visa.
James Lambie
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.
…

[2023] AATA 2288

6 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies