1910922 (Refugee)

1910922 (Refugee) [2023] AATA 2415 (29 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Roya Majd (MARN: 0701239)
CASE NUMBER: 1910922

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Wayne Pennell
DATE:29 May 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for consideration with the direction that the Applicant satisfies section 36(2)(a) of the Migration Act 1958.

Statement made on 29 May 2023 at 2:15pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – political opinion – tribal violence – land dispute – payback system – fear of killing – burning of family home – delay in applying for protection – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for a review of a decision made by a Delegate of the Minister for Home Affairs (the Delegate) to refuse to grant the Applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1]The Delegate’s decision was provided to the Applicant on 15 April 2019.
The Applicant claims to be a citizen of Papua New Guinea (‘PNG’) and she applied for a Protection visa.[2] The Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to PNG, there was a real risk she would suffer significant harm. Therefore, the Delegate refused to grant the visa[3] on the basis that she was not a refugee as defined by the Act[4] and she was not a person in respect of whom Australia has protection obligations.[5]
[2]The Applicant’s application was received by the Department on 5 October 2017.
[3]The Delegate’s refusal was made on 15 April 2019.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
The Applicant filed an application with the Tribunal for a review of the Delegate’s decision.[6] At a subsequent time, the Tribunal wrote to the Applicant advising her that it had considered all the material before it relating to her application, but it was unable to make a favourable decision on that information alone.[7]
[6]The Applicants’ application was filed on 25 August 2019.
[7]The Tribunal advised the Applicant on 18 January 2023.
The Tribunal invited the Applicant to attend an in-person review hearing, which was originally scheduled for March 2023. However, the Applicant had engaged a new representative just prior to the hearing taking place and a request was made to postpone the hearing. That request was granted, and the review hearing was rescheduled for 17 May 2023.
CRITERIA FOR A PROTECTION VISA
The measures for a Protection visa are set out in the Act[8] and Schedule 2 to the Migration Regulations1994 (Cth). An Applicant for the visa must meet one of the alternative criteria as provided in the Act.[9] That is, the Applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
[8]Migration Act 1958 (Cth), s 36.
[9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act provides that a criterion for a Protection visa is that the Applicant for the visa is a non-citizen in Australia in respect of whom the Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]
[10]Migration Act1958 (Cth), s 36(2)(a).
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.[11] 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.[12]
[11]Migration Act1958 (Cth), s 5H(1)(a).
[12]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[13] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act, which are extracted in the attachment to this decision.[14]
[13]Migration Act 1958 (Cth), s 5J(1).
[14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[16] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, which are extracted in the attachment to this decision.[17]
[15]Migration Act 1958 (Cth), s 36(2)(a).
[16]Migration Act 1958 (Cth), s 36(2)(aa).
[17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]
[18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]
[19]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The Applicant claims to be a PNG citizen and provided a copy of her passport to authenticate this claim.[20] The Tribunal accepts the Applicant’s identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is the Applicant’s country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[21]
[20]The Applicant’s passport was issued in Papua New Guinea on 16 December 2015.
[21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the Applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[22]
[22]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[23] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[23]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF THE APPLICANT’S CASE
The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to PNG, there exists a real risk that she will suffer significant harm or there is a real chance she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[24]
[24]Migration Act 1958 (Cth), s 36(2).
The mere fact that the Applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because she claims that she faces 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 the statutory elements are made out.
The Tribunal is not required to make the Applicant’s case for her. It is her responsibility to specify all particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of her claims, or to establish or assist in establishing the claims.[25] Nor is the Tribunal required to accept uncritically any and all the allegations made by the Applicant.[26]
[25]Migration Act 1958 (Cth), s 5AAA.
[26]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
APPLICANT’S BACKGROUND AND CLAIMS
The Applicant originates from the village called [Village 1] in the highlands of Papua New Guinea. Her mother passed away about 10 years ago, however her father is still alive. She had [specified family members]. She [details deleted] has [specified siblings] who are still alive.
In regard to her own family, she was in a long standing common law marriage to her husband and has [number] children. These children of the family unit consist [gender mix] from that marriage. She separated from her husband in 2009. All of her children are adults, with the exception of the youngest child who is aged [age]. Her children all live in PNG, except for [a daughter] who lives in Australia and has permanent residency on a Protection visa which was granted in 2019.
The Applicant told the Tribunal that she and her daughter had similar claims and they both applied for Protection visas which were lodged with the Department the same day. Her daughter’s application was approved by the Department, however her own application was refused.
When explaining her fear of returning to PNG, she said that for many years there has been clan fights between her clan and a neighbouring clan. During one of those fights which was over a land dispute, her brother killed three men from the neighbouring clan.
The Applicant said that in PNG, there is a ‘payback’, or a system of retribution. Because her brother had killed those three men, that neighbouring clan actively hunted and sought out her brother to extract revenge on him. The payback she spoke of was also directed towards her brother’s own immediate family, [detail deleted].
She explained an event where the rival clan entered her village one night and set fire to her house while she and her children slept inside. It was after this happened that she fled to Port Moresby for safety with her children. She explained that the payback system is widespread in PNG and she feared that the rival clan would seek her out if she stayed in PNG.
She travelled to Australia, arriving in March 2017. She left her children with a church pastor in Port Moresby. She stayed in Australia for a little over a week before travelling back to PNG. She said that she returned because she was concerned about the safety of her children. She remained in PNG for approximately three months before she travelled back to Australia. She was in Australia for three months before she applied for a Protection visa. The delay in making her application is discussed in greater detail later in these reasons.
The Applicant provided evidence to the Tribunal in regard to the death of her brother. In February 2023, her brother was killed by the rival clan. She provided to the Tribunal photographs of his body and his funeral within her home village. When assessing the Applicant’s testimony and weighing that against the other tangible evidence she produced, the Tribunal accepts that her brother was deceased, and accepts that he was killed by members of the rival clan as a form of payback.
Other evidence provided by the Applicant showed newspaper clippings of buildings within her village which had been set on fire. The newspaper clippings also show that the police had attended, however they came under attack and their police vehicle was set alight and destroyed. The Applicant claimed that the rival clan were responsible for the burning of the buildings in her village and the Tribunal accepts that the evidence is corroborative of her claims.
The Applicant explained that after her house had been burnt down and her life threatened by the rival clan, she approached the police for assistance and protection. She was told that the police could not protect her as the payback tradition is part of the PNG culture. She was also told the police could not arrest the people responsible because her brother had killed the three men from the rival clan and the rival clan wanted payback. When assessing the available country information and weighing that against the Applicant’s claim about payback, the Tribunal accepts her evidence on this point.
In support of her application, the Applicant’s daughter provided a statutory declaration.[27] In that evidence, the Applicant’s daughter outlined that she and the Applicant each made applications for Protection visas. Those application were lodged with the Department on the same day. The Applicant’s daughter provided extracts from her own application which shows that the claims made by her and the Applicant were based on the same fear of payback from the rival clan, and they would not relocate to another part of PNG for protection because the payback tradition is spread across PNG. The Applicant’s daughter told the Tribunal the Department granted her a Protection visa in 2019.
[27]Dated 12 May 2023.
Country information
The DFAT Country Information report for PNG provides that payback, or traditional compensation, is an act of retaliation that is usually carried out when one group has been harmed by another.[28]
[28]The DFAT Country Information report, Papua New Guinea, 6 September 2022, page 2.
It is claimed by the Applicant that her brother was involved in a land dispute with a rival clan, and that he killed three members of that clan. She went on to claim that the rival clan sought retribution through the payback system. The DFAT report provides the following, which the Tribunal finds is corroborative of the Applicant’s claims and the evidence she gave to the Tribunal at the review hearing.
The DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG. The basis for this is that tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.
Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced.
Land disputes are a common catalyst for unrest in PNG. Ninety-seven per cent of land in PNG is customarily held. Conflict typically escalates from territorial disputes into violence, with some incidents being ‘payback’ for previous incidents. While inter-tribal conflict has historically occurred, especially in the Highlands region, observers suggest that such violence has become markedly worse in the last few years due to the increasing prevalence of high-powered firearms, the willingness to target the elderly, women and children, and the fact that conflict is less governed by customary law than in the past. Inter-tribal fighting often results in the destruction of communal property and services, including health clinics, schools and transport infrastructure and in substantial numbers of internally displaced persons. Sources report national and provincial governments are disinclined to rebuild after such destruction.
Observers have suggested that increased fighting in the Highlands should be viewed as a resort to self-help through violent means, in the absence of effective government alternatives for managing disputes peacefully. Police capacity and willingness to prevent and investigate tribal fighting is typically limited. In Hela province, which has a population of 400,000 people, there are just 83 Royal Papua New Guinea Constabulary (RPNGC) officers, as noted by Prime Minister Marape in response to the July 2019 massacre. Often the RPNGC are outnumbered and outgunned by warring groups and can only intervene at significant personal risk.
Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there.[29]
[29]The DFAT Country Information report, Papua New Guinea, 6 September 2022, page 12, paragraphs 2.27 to 2.32.
Delay in lodging application

Returning to the Applicant’s delay in making her application for a Protection visa, the Tribunal notes that she arrived in Australia in March 2017 and returned to PNG about a week later. The Applicant explained to the Tribunal that at that time, the conflict between the rival clans around her village were particularly active. She relocated to Port Moresby with her children before travelling to Australia. When she came to Australia, she left her children in the care of a church pastor. Her return to PNG in March 2017 was out of deep concern for the welfare of her children. When she secured matters relating to them, she then travelled back to Australia and her application was made in October 2017.
The Applicant explained that when she arrived in Australia, she did not know or understand how to apply for a Protection visa. She lived with a friend in [a named city] who came from the same province as her, and her friend had already been granted a Protection visa.
The Applicant went on to explain that her friend, like the Applicant, was not well educated and not familiar with how to fill out what she described as a complicated application. When asked if she was aware who completed her friend’s application, the Applicant said that her friend got someone else to complete the application for her because her friend did not understand how to complete the application either. The Applicant explained that it was only when she and her daughter got together that they were able to together figure out how to complete the application and lodge it.
In respect to any consideration about the delay between the applicant’s arrival in Australia and her application for a protection visa, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
Notwithstanding that a delay in seeking a Protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm, each case should be assessed on its own individual circumstances. The Tribunal has had the opportunity of having the Applicant’s personal appearance at the review hearing and has carefully assessed her responses to the Tribunal’s questions, along with her evidence in regard to the delay she experienced in making her application. The Tribunal found that her responses and her evidence were given in an open and frank manner, and the Tribunal considers that significant merit should be attached to the evidence she gave.
When assessing the Applicant’s explanations for the delay in making her application, the Tribunal accepts those explanations and does not consider the delay should impact upon her credibility and the overall decision in the matter.
FINDINGS – FUTURE RISK OF HARM TO THE APPLICANT
Then Tribunal accepts and acknowledges that considerable time has passed between when the Delegate made the original assessment and decision to when the Tribunal’s review hearing took place. Consequently, it is incumbent upon the Tribunal to hear and decide the Applicant’s claims by way of a fresh hearing on the merits of her application as at the date of the review hearing. In doing that, the Tribunal is obliged to consider the best and most current information available and is not limited to the information which the Delegate relied upon to reach the original decision.[30]
[30]Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.
Earlier in these reasons, the Tribunal arrived at a finding that the Applicant’s claim of having a well-founded fear that if she returned to PNG, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm by member of the rival tribal clan who killed her brother.
The Tribunal has identified within these reasons the Applicant’s claims and evidence, which the Tribunal finds supports those claims. The Applicant’s explanation and description of the events relating to her brother killing three members of the rival tribal clan; that rival clan being responsible for burning down her house whilst she was asleep inside; and the rival tribal clan killing her brother as payback for when he killed member of their clan.
In conclusion, when carefully assessing the facts, circumstances, features and available evidence, and when weighing all of that against the available country information, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to PNG, there is a real risk that she will suffer significant harm, including cruel or inhuman treatment or punishment or degrading treatment or punishment.
For those reasons given above, the Tribunal finds that the Applicant meets the definition of a refugee as per the criteria set out in the Act.[31]
[31]Migration Act 1958 (Cth), s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies section 36(2)(a) of the Act.
Wayne Pennell
Senior Member
ATTACHMENT - Extract from Migration Act 1958 (Cth)
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 2415

29 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies