1911392 (Refugee)

1911392 (Refugee) [2023] AATA 2244 (20 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE:        Unrepresented
CASE NUMBER:  1911392
COUNTRY OF REFERENCE:                   Papua New Guinea (‘PNG’)
MEMBER:Kate Chapple
DATE:20 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the main applicant satisfies s 36(2)(a) of the Act and the secondary applicant satisfies s 36(2)(b) of the Act.

Statement made on 20 March 2023 at 7:20am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – woman who has fled from domestic and family violence in PNG – single mother – gender-based violence – victim of coercive control – physical assault – rape – secondary applicant’s health issues – adequate state protection or support services not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
OVERVIEW

The main applicant, a Papua New Guinean woman aged in her [age range], experienced her parents’ separation when she was very young. She went to live with her father and his second wife in PNG for a number of years during which she claims she was controlled, and verbally, emotionally, and physically abused by her father and step-mother, and in 2016 was sexually abused and raped by an acquaintance of the step-mother at the step-mother’s invitation.
The main applicant’s mother also remarried, however subsequently separated from her second husband and travelled to Australia in 2010, and has since become an Australian citizen. With her mother’s help and support, the main applicant travelled to Australia in July 2016, and discovered soon after she arrived that she was pregnant, which she claims was as a result of being raped in PNG. The applicant applied for protection in October 2016. Her son was born in Australia in [year]. He has significant and ongoing respiratory health problems.
The main applicant fears that if she returns to PNG, she will be subjected to harm by her step-mother and father as she was in the past, she will be shamed for being a single mother, she will not have the resources to live and care for her son and his health problems, and her son will be taken by the man who raped her. The main applicant claims that the police and services in PNG would offer her no protection and there is nowhere in PNG she would feel safe to live.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application
The following departmental records are associated with the main applicant’s application for protection:
4.1.Application for a protection visa dated 24 October 2016.
4.2.Decision record relating to the delegate’s refusal decision dated 30 April 2019.
4.3.Interview audio file.
4.4.Case file.
4.5.Internal records relating to the applicants.
Application for review
The Tribunal wrote to the main applicant inviting the applicants to attend a hearing on 16 March 2023 and to provide pre-hearing submissions.
Prior to the hearing, the main applicant provided to the Tribunal: confirmation that the applicants intended to participate in the hearing unrepresented and without the assistance of an interpreter; various medical reports, documents and letters relating to the secondary applicant’s health; a letter in support of the main applicant from [an organisation]; and a letter from the main applicant’s mother regarding the secondary applicant’s health.
The Hearing
The applicants and the main applicant’s mother appeared before the Tribunal at a hearing conducted in person on 16 March 2023, with the assistance of a support worker. The main applicant was unrepresented and confirmed she did not require the assistance of an interpreter. Due to his young age, the secondary applicant did not give evidence.
The main applicant’s evidence is summarised as follows:
8.1.The main applicant was born on [date] in [Location 1], PNG. She lived with her biological parents (whom she named) in [Location 1] until they separated when she was aged around [age], however she doesn’t really remember much of that time. Sometime after her parents separated, they had another child, her brother (whom she named), however the marriage did not reconcile.
8.2.The main applicant’s father remarried, and she went to live with her father and step-mother in Port Moresby for six to seven years. At some stage during those years, her younger brother also lived with them, along with their step-siblings, the children of the father’s second marriage.
8.3.The main applicant’s father worked in a [workplace] for a time, but then resigned to run his own business. When she was living with him and her step-mother, her father travelled often to different provinces, for a week or weeks at a time doing project work. Her step-mother was jealous of her and didn’t like looking after her. The main applicant was required to do many of the household chores and babysitting of younger siblings. During her father’s absences, her step-mother swore at her, called her names, told people she slept around, and was physically violent towards her, including striking her on the head. Neighbours overheard on one occasion and tried to intervene. In 2016, the step-mother told an acquaintance and head member of her own tribe that he could come to the house late at night and have sex with the main applicant for money. The main applicant thinks this happened on two or three occasions, however she doesn’t want to remember. When the main applicant told her step-mother, the step-mother said she was lying, that she and the father knew the man and he wouldn’t do that. The main applicant approached a neighbour for help, but they told her the police wouldn’t get involved or arrest anyone unless they were paid a bribe. She doesn’t know the man who sexually abused and raped her; she only recalls his face. She was and remains traumatised by these experiences.
8.4.When the main applicant’s father returned home after periods of absence for work, he was strict and controlling, emotionally and physically abusive, and he verbally denigrated her mother. She also witnessed her father’s violence towards her step-mother, including breaking her hand on one or more occasions, resulting in her going to hospital, however the assaults were never reported to police. She doesn’t recall witnessing or being aware of abuse of her step-siblings by her father or step-mother. Her father and step-mother have remained married, and are now living in [Location 1]. The main applicant’s brother, now aged [age], continues to live with them as he is still completing his schooling. The main applicant sometimes talks on the phone with her brother who tells her he is being mistreated by the father and step-mother as she was in the past.
8.5.The main applicant’s mother also remarried, a marriage that lasted a few years, and bore two children. Her mother travelled to Australia in 2010, and she has since become an Australian citizen. The main applicant doesn’t know why her mother came to Australia. She wanted to come to Australia to be with her mother, however at that time she was young and under her father’s strict control.
8.6.After the sexual abuse and rapes, the main applicant no longer felt safe living with her father and step-mother. She asked her mother in Australia for her help to leave PNG. Her mother, through contacts in PNG, was put in touch with agents who could organise a visa. The main applicant is not aware of what was involved in this process, and doesn’t know why she was issued a false birth certificate misrepresenting her surname, her date of birth as [another date], and the agents (whom she only met once and didn’t otherwise know) as her parents. The main applicant’s father and step-mother were not aware of her taking steps to leave PNG. At some time previously, her father had told her that her passport had been destroyed in a fire in the village in [Location 1], an explanation she didn’t think made sense and didn’t believe.
8.7.When the main applicant boarded the plane to Australia, she rang her father and told him about the sexual abuse and rapes, and that she no longer felt safe living with him and her step-mother. Her father didn’t believe her and got angry. She hasn’t spoken to him since, nor to her step-mother and their children.
8.8.The main applicant discovered she was pregnant once she arrived in Australia and came to live with her mother. She knows the pregnancy was as a result of being raped, however has had no contact with the father and does not know who the father is other than a member of her step-mother’s tribe whose face she recalls. Her son, the second applicant, now nearly [age], has had health problems for many years suffering from asthma, shortness of breath, and mucous blocking his airways. He has been hospitalised several times and needs to be closely monitored and treated with medication. He is a happy boy and enjoys Year [grade] at school.
8.9.The applicants live with the main applicant’s mother and the children of her second marriage, aged [ages]. The main applicant works for a [business] and her mother as [an occupation].
8.10.The main applicant went to counselling [in] 2019 and 2020, which she found helpful. She has been talking recently with a worker at [named organisation] about her sleep problems and having nightmares, and she expects that some further counselling appointments will be arranged soon.
8.11.The main applicant does not feel safe returning to her father and step-mother in PNG. She fears the harm from the past, and also that her step-mother may contact the man who raped her and he may try to take her son away. She doesn’t know where she would live; as a single mother, she would be shamed. If she were harmed or threatened, she would report it to police, however she knows they would do nothing to protect her. She is also worried about how she would live and care for her son, especially with his health problems.
The main applicant’s mother gave evidence that:
9.1.Once in Australia, she tried to obtain a child migrant visa for the main applicant to come to Australia, and sent the requisite funds to PNG. The father refused to cooperate and prevented the main applicant from undergoing the necessary medical examination, so the visa was refused. The father sent the main applicant back to [Location 1] from Port Moresby to stop her from coming to Australia.
9.2.She was very distressed when she heard about the main applicant being sexually abused and raped. She discovered after asking one of her extended family members to check on the main applicant, then managed to talk to her on his phone. That’s when she started making arrangements to bring the main applicant to Australia. She doesn’t know the agents who organised the visa; she was put in touch with them by another contact. She doesn’t know how the main applicant’s name and other details got mixed up.
9.3.The father and her former husband wrecked the main applicant’s life. Everything would have been different and better for the main applicant had she been granted the child migrant visa and come to Australia when she was much younger.
9.4.Her mother (the main applicant’s maternal grandmother) who lives in [Location 1], told her that the father visited her last year and asked for forgiveness and she refused.
Country information
The Tribunal notes the following country information in light of the main applicant’s claims and evidence:
10.1.The Papua New Guinea Demographic and Health Survey 2016-2018, dated November 2019 states (inter alia) that:
10.1.1.Fifty-six percent of women age 15-49 have experienced physical    violence since age 15, and 38% experienced physical violence in the 12 months preceding the survey. Eighteen percent of women who        have ever been pregnant experienced violence during pregnancy.
10.1.2.Women’s experience of physical violence increases from 39% among       those age 15-19 to 62% among those age 30-39 before dropping to 58% among those age 40-49.
10.1.3.Women with at least one child are more likely than those with no living      children to have experienced physical violence. For example, 63% of           women with one or two children have experienced physical violence,        as compared with 41% of women with no living children.
10.1.4.Experience of physical violence is more common among employed           women, irrespective of whether they are employed for cash (60%) or        not for cash (62%), than among women who are not employed (53%).
10.1.5.Among ever-married women who have experienced physical violence       since age 15, 78% report their current husband as the perpetrator, and 15% report a former husband as the perpetrator. Eighteen            percent report violence by fathers/stepfathers, while 12% report           violence by mothers/stepmothers and 13% brothers or sisters.
10.1.6.Twenty-eight percent of women age 15-49 have ever experienced sexual violence, and 20% experienced sexual violence in the 12     months preceding the survey. Eleven percent of women had         experienced sexual violence by age 22, while 6% had experienced sexual violence by age 18.
10.1.7.Among ever-married women who have experienced sexual violence,        77% report their current husband as the perpetrator, while 19% report           a former husband as the perpetrator. Among women who have never          been married, current or former boyfriends (66%), relatives (16%), and strangers (6%) are the most common perpetrators of sexual violence.
10.1.8.Physical violence or sexual violence may not occur in isolation; rather,      women may experience a combination of forms of violence, and these combinations of violence can have long-lasting negative effects on      women’s lives, health, and well-being. Overall, 59% of women have experienced physical or sexual violence: 31% have experienced    physical violence only, 3% have experienced sexual violence only,            and 25% have experienced both physical and sexual violence. The      percentage of women who have experienced physical or sexual     violence increases sharply from 38% among those age 15-17 to 65%          among those age 30-39 before dropping to 62% among those age 40-      49.
10.1.9.Thirty-five percent of women who have ever experienced physical or         sexual violence have sought help, while 13% have never sought help      but have told someone about the violence. Thirty-nine percent of    women who have experienced any type of physical or sexual violence have not sought help or told anyone about the violence.
10.1.10.Among women who have experienced physical or sexual violence and      sought help, the most common source of help was their own family      (72%), followed by their husband’s family (13%), friends (11%),            neighbours (11%), and the police (10%). Few women sought help from social work organisations or doctors/medical personnel (3% each). Fifteen percent of women who have experienced both physical     and sexual violence have sought help from the police.
10.2.The DFAT Country Information Report, Papua New Guinea, 6 September 2022, states that:
10.2.1.DFAT assesses that women across PNG face a high risk of societal          discrimination due to long-standing traditional values and gender    roles which restrict their ability to fully participate in the community and          workforce. DFAT further assesses that women in PNG face a high risk           of gender-based violence, regardless of their social status. Women          living in Highlands provinces are at particular risk, although violence       against women occurs nationwide. Women who are subjected to    gender-based violence are unlikely to be able to avail themselves of        adequate state protection or support services.
10.2.2.While there has been significant attention paid to the level of GBV in         PNG by the national government and NGOs, and some state resources made available to address it, the police response remains           inadequate. The RPNGC lacks the capacity, including most especially        vehicles, fuel and human resources, to respond to crime generally.          However, its response to GBV is especially lacking. Domestic and international sources report that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder,    serious injury or repeated rape). Statistics provided by the RPGNC          between December 2017 and October 2018 showed 2,013 family and      sexual violence (FSV) cases were reported in Port Moresby and the       Central Province, resulting in 195 arrests and 11 convictions; that is,    only 1 in 200 of reported cases resulted in a conviction. Given how         few women seek help from police, this suggests only a tiny proportion     of perpetrators of violence are arrested or successfully prosecuted.
10.2.3.FSV is still seen by many police officers (and many men in PNG) as a      private matter in which the state should not intervene. Levels of GBV      by police officers themselves are high. Police are more likely to act on        complaints about perpetrators outside the family, if they act at all. However, the RPNGC has made some progress in recent years,            establishing Family and Sexual Violence Units (FSVU) in every          province. Sources told DFAT FSVUs represent progress in the      policing of GBV, especially with regard to the willingness to investigate      and make arrests, and in their connectedness to other services.    However, there are not enough FSVUs to respond adequately to the      scale of the problem. There are only 106 FSVU officers across the          country and at the time of publication, there is a single FSVU officer in      Tari, capital of the Highlands province of Hela, to cover the whole       province (population of around 250,000). FSVU officers are typically         subject to the same resource constraints as the rest of the RPNGC.
10.2.4.Sources report a significant lack of services for people requiring     assistance after suffering family violence. There are now 22 Family           Support Centres (FSCs) across the country (one in each province), typically attached to a general hospital to provide health services for GBV survivors. But while the FSC model is an advance for GBV     health responses, their services are insufficient.
10.2.5.While women’s refuges exist in PNG, they are insufficient for the level      of GBV that exists. Sources report that Port Moresby, a city of 800,000           people, has only six safe houses for women suffering GBV, open to the public, and mostly run by faith-based organisations.
10.3.The DHA Common Claims, Papua New Guinea, 17 November 2022, states that:
10.3.1.There are limited prospects for female victims of domestic and family        violence to relocate to other areas of Papua New Guinea, including    Port Moresby. Last decade, safe houses and shelters for women      experiencing family violence were extremely limited, often at capacity,      and offered only short-term placements. For example, the five          shelters for abused women in Port Moresby open before 2020, run by       faith organisations, often were at capacity, including the best    shelter of this kind.
10.3.2.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. 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.      Women who internally relocate to escape violence are likely to lose all          of their possessions, including titles to land. Social, cultural,           political and economic discrimination against women is evident            throughout PNG; even women in urban areas are considered to be    second-class citizens.
10.3.3.Most people in Papua New Guinea do not have regular access to healthcare. Despite introducing free primary healthcare in 2014, the     government struggles to provide basic health services and health indicators have declined in recent years…The healthcare system’s       major challenges include shortages of essential medicines and      supplies, shortage of medical staff, closure of health facilities,         decentralisation of health services from national to provincial    authorities, and difficulty of patients in remote areas to physically          access care.
Specialist information about domestic and family violence

The Tribunal notes the following extract from Australia’s online National Domestic and Family Violence Bench Book:
11.1.[at 4.2] The distinguishing characteristic of domestic and family violence is that it can present in many forms and can occur within a variety of relationships and is most likely to involve a complex pattern of controlling behaviour and violence over a period of time, rather than a single incident. This is often referred to as coercive control. One study has described coercive control as the ‘golden thread’ running through risk identification and assessment for domestic violence. It is likely therefore that risk will heighten where a perpetrator increasingly engages in multiple forms of violence or abuse, or does so more frequently, intensely or severely. Judicial recognition of this is critical to understanding the ongoing and ever-changing risks of domestic and family violence unique to the circumstances of each case before the court, and the need to regularly reassess risk throughout the course of judicial proceedings. It is also important to recognise, more broadly, that certain groups within the community as identified in this bench book may be at greater risk of experiencing domestic and family violence, and may be more vulnerable to its impacts. Some people may belong to multiple groups that have been identified as being particularly vulnerable to domestic and family violence and, as a consequence, may experience heightened risk or vulnerability.
11.2.[at 3.1.8] Different children in the same family may give dramatically different statements and testimony as a consequence of different experiences, for example one child may be the targeted child, another may be the protected child.
It should be noted too that notwithstanding the extent of exposure to domestic and family violence a child may be reluctant to disclose their experiences or feelings for fear of not being believed or making the situation worse, or because they have been groomed or coerced not to disclose. The prevalence of exposure may also cause the child to perceive violence as normal and disclosure as unnecessary.
Parents and caregivers who perpetrate domestic and family violence are far more likely than other parents and caregivers to also perpetrate direct forms of child abuse and engage in negative parenting practices. The affected children in their care are also more likely to experience multiple additional adversities such as exposure to other forms of physical, sexual and emotional violence and abuse in the home, at school, and in the community. A child’s exposure to domestic and family violence at any age may result in a range of poor psychological, behavioural and physical outcomes including depression, anxiety, trauma symptoms, increased aggression, antisocial behaviour, temperament and mood problems, impaired cognitive functioning, learning and schooling difficulties, low self-esteem, pervasive fear, peer conflict, loneliness, increased likelihood of alcohol or substance misuse, and vulnerability to unemployment and homelessness. It is also possible that domestic and family violence-exposed children may as adults exhibit attitudes and behaviours that reflect their childhood experiences.
Exposing children to domestic and family violence may be one aspect of a complex pattern of behaviours engaged in by perpetrators in order to control another person, sometimes referred to as coercive control.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal considers the main applicant’s claims and evidence credible.
The Tribunal considers the evidence of the main applicant’s mother credible.
In considering the main applicant’s claims and evidence, the Tribunal has taken account of the very young age at which her parents separated and she went to live with her father and step-mother in a hostile and abusive environment, the length of time she lived in that environment, her experiences of abuse and rape and associated trauma, her lack of agency and separation from her mother against her will from her early childhood to early [age range].
Overall, the Tribunal accepts the main applicant’s claims and evidence regarding what happened to her in PNG and her life in Australia. In particular, the Tribunal accepts that:
15.1.The main applicant was coercively controlled by her father.
15.2.The main applicant was verbally, emotionally, and physically abused by her father and her step-mother over many years.
15.3.The main applicant was sexually abused and raped by a man known to her step-mother and at the invitation and encouragement of her step-mother.
15.4.The main applicant’s father and step-mother failed to acknowledge or protect her from the abuse and rape.
15.5.The secondary applicant was conceived as a result of the main applicant being raped.
15.6.The main applicant witnessed violence by her father towards her step-mother.
15.7.The main applicant was and remains traumatised by her experiences of abuse and violence.
15.8.The secondary applicant has significant and ongoing respiratory health problems requiring monitoring and treatment.
Other considerations
In considering the main applicant’s claims and evidence, the Tribunal has also taken account of:
16.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
16.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
Findings of fact
Based on the consideration of claims and evidence, and taking into account the country information and specialist information about domestic and family violence, the Tribunal finds that:
17.1.The main applicant is a citizen of PNG.
17.2.The main applicant is the victim of coercive control, verbal, emotional, physical and sexual abuse and violence at the hands of or facilitated by her father and step-mother in PNG.
17.3.The main applicant left PNG to escape the coercive control, abuse and violence.
17.4.The main applicant was and remains traumatised by the coercive control, abuse and violence.
17.5.If returned to PNG, the main applicant fears being subjected to coercive control, abuse and violence at the hands of or facilitated by her father and/or her step-mother as she was in the past; being targeted and harmed by the man who raped her, including any attempt he may make to take her son, the second applicant, from her; being targeted and harmed through being shamed as a single mother and unable to support and care for herself and her son and his health problems.
17.6.If returned to PNG, the Tribunal considers it is likely the main applicant would feel compelled to make contact with and seek to protect her younger brother who remains living with her father and step-mother.
17.7.If returned to PNG, there is a real and not remote chance, that within the reasonably foreseeable future, the main applicant’s father and step-mother would become aware of her whereabouts and continue or facilitate the coercive control, abuse and violence of the past, including facilitating contact with the man who raped her and any attempt he may make to take her son, the second applicant, from her.
17.8.If returned to PNG, there would be no safe place for the main applicant to live as it is likely the main applicant’s father and step-mother would monitor and control her movements wherever she lived in PNG.
17.9.If returned to PNG, the main applicant, as a former and continuing victim of domestic and family violence and as a single mother in her late [age range], faces a high risk of further gender-based violence and she would be unlikely to be able to avail herself of adequate state protection or support services.
17.10.If returned to PNG, the main applicant as a single mother in her late [age range] faces a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict her ability to fully participate in the community and workforce, and as a consequence, restrict her ability to financially support herself and her son, the second applicant, and care for his ongoing health needs.
17.11.If returned to PNG, the main applicant would be unable to modify her behaviour to avoid being a target of coercive control, abuse and violence at the hands of or facilitated by her father and step-mother and any further gender-based violence as her vulnerability to such harm arises primarily from her past experiences in PNG.
Application of law
The issue in this case is whether the main applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal determines that:
19.1.The main applicant is a non-citizen in Australia.
19.2.The main applicant fears being persecuted in PNG for the reason that she is a member of particular social groups, being a woman who has fled from domestic and family violence in PNG and being a single mother in her late [age range].
19.3.There is a real chance that, if the main applicant returned to PNG, she would be persecuted for her membership of the social groups described.
19.4The persecution would involve serious harm to the main applicant including targeted coercive control, abuse and violence, further gender-based violence, and societal discrimination in PNG.
19.5The real chance of persecution relates to all areas of PNG.
19.6There are no effective protection measures available to the main applicant in PNG.
19.7The main applicant could not take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in PNG.
19.8The main applicant has a well-founded fear of persecution as defined in s 5J of the Act.
19.9The main applicant is outside PNG, her country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of PNG.
19.10The main applicant does not have a right to enter and reside in, temporarily or permanently, any country other than PNG.
CONCLUSIONS
The Tribunal is satisfied that the main applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the main applicant satisfies the criteria in s 36(2)(a) of the Act, accordingly, the secondary applicant, as a member of the same family unit as the main applicant, satisfies the criterion in s 36(2)(b) of the Act.
decision
The Tribunal remits the matter for reconsideration with the direction that the main applicant satisfies s 36(2)(a) of the Act.
The Tribunal remits the matter for reconsideration with the direction that the secondary applicant satisfies s 36(2)(b) of the Act.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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 2244

20 March 2023

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