1912970 (Refugee)

1912970 (Refugee) [2024] AATA 4380 (10 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912970
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Stefanie Memmott
DATE:10 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(c)(i) of the Migration Act.

Statement made on 10 September 2024 at 7:40am

CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea – tribal disputes – actions in seeking police intervention – membership of the Nemi tribe – member of the same family unit of each of his youngest four children – children satisfy s 36(2)(aa) of the Act – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 411, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 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 21 December 2016.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant’s protection visa application was made together with those of his wife and [children].
The visa application form includes the following personal information about the applicant:
·He is a citizen of Papua New Guinea and no other country. He speaks, reads and writes Pidgin and English and speaks the Melpa local dialect.
·He travelled to Brisbane, Australia on [date] October 2016, departing from Port Moresby, as the holder of a Papua New Guinean passport and an Australian visitor visa.
·He previously held an Australian student visa from 1992-1994, and a visitor visa issued on 29 January 2016. He travelled to Australia in February 2016 for almost a month before returning to Papua New Guinea.
The visa application form sets out the following claims for protection:
·There is a tribal fight in the area the applicant comes from, including his tribe. He was one of the only educated people in his tribe and was trin to help stop the fight by writing letters to the police.
·People misunderstood him and started accusing him of trying to entice police into the area. The other tribe burnt his house down, and now the tribes want to kill him.
·If he returns to Papua New Guinea, the applicant and his family will be killed.
·The applicant was eventually able to report to the police, but the police are not responding.
·They tried to move to Mount Hagen town, but the tribes came to try and find them, so they had to move around, and the tribes kept coming. The population is small and all the tribes know each other.
The visa application form was accompanied by a detailed statutory declaration made on 21 December 2016, which set out the following personal information and claims for protection:
·The applicant was born in Mount Hagen in the Jiwaka (formerly Western Highlands) Province of Papua New Guinea.
·He is of Nemi ethnicity. The Nemi tribe is a smaller tribe, most of whom live in the vicinity of Koip Village and Mount Hagen in the Jiwaka Province. The Nemi tribe are one of a number of sub-set tribal groups located in the vicinity of Mount Hagen who speak the Melpa dialect of the Papuan language.
·The applicant grew up in Koip village, about 25 kms south-east of Mount Hagen. His parents, who were subsistence farmers, are now deceased but he has [brothers] who remain in Koip and work as subsistence farmers.
·The applicant was first married in 1986 but divorced in 2001. The applicant has one son from this marriage who lives in Brisbane, though they haven’t had much contact since the divorce.
·The applicant was married again in 2005 to [Ms A], and they have [children] together: [names deleted].
·The applicant completed primary school in his village, high school [and college]. After he completed these studies in [year], he began working for [a workplace] as an [Occupation 1].
·He studied in Adelaide between 1992 and 1994 at [a university].
·He returned to Mount Hagen in 1994 and again worked for the [same employer], until 2010. He lived predominantly in Mount Hagen during this time but had a house in Koip village he would visit regularly during this time.
·In 2010 he began working as an [Occupation 1] for [an agency] (and was still employed there as at the date of the statutory declaration). During this time he predominantly lived in his house in Koip village, though his children travelled to Mount Hagen for school.
·Koip village is predominantly Nemi people. A neighbouring village is Kaip Village, in which three predominant tribes live – the Managa and Jena on one side of the road and the Nokopa people on the other side of the road.
·The Managa and Jena tribes are historically enemies, but before 2006 these tribes generally tolerated each other and there was little violence between the two groups. However in 2006 they started to have conflict over land. Both tribes also supported different political candidates which increased the conflict and tension between them. Also around this time, these tribes began to acquire guns. Historically, when there was conflict between tribes they only had spears, bow and arrows, which contained the violence.
·In 2006 the Managa / Jena conflict was isolated to Kaip, but the applicant could see the potential for the conflict to escalate and spread into neighbouring areas – including his village of Koip. So in 2006 he wrote three letters to the police. The applicant felt it was his responsibility to make this request to the police as he was one of the few educated people in either Kaip or Koip village.
·There was no response to the letters, so the applicant went to the police office – two instances being [date] January 2007 and [date] January 2007. The police did nothing. He didn’t bother writing again but continued to approach them in person.
·From 2006 to 2014/15 the conflict between the Managa and the Jena was very tense and there were fights which broke out, but the conflict did not involve very many killings.
·However in 2014/15 the conflict escalated considerably and people (not just from the Managa and Jena tribes) started to lose their lives. Also, the incidences of property damage greatly increased during this period. On 14 December 2014 the confrontation flared into a battle which lasted for 5 days. 17 people were killed in this battle and many more were wounded. Houses, food gardens and vehicles were destroyed, and over 3200 people were displaced.
·The Nemis and Nokopas tried to help and assist and broker peace between the Manage and Jena tribes (though did not participate in the fighting).
·The violence started to be directed towards the applicant personally from around 2014 onwards. He started to received threats that he and his family would be harmed. He did not report these threats to the police as he could not leave the village.
·During 2014/15 the applicant was trying to get the police to raid hot spot locations where fighting was taking place, he was going to the police station as he thought he’d more likely get as a response (rather than writing).
·People in the Managa and Jena tribes learnt he had been to the police and weren’t happy. They didn’t want their guns confiscated or to be taken to gaol.
·During this time, the conflict spread beyond Kaip village and some of the Managa tribespeople (mainly women, children and the elderly) moved into Koip Village (along with another neighbouring village occupied by the Kopi tribe). When this happened, the Jenas accused the Nemis of assisting the Managa – even though they were just providing shelter. The Jenas then started to target the Nemis.
·While this fighting was going on, people in the Kaip and Koip villages were not free to move around as the Managa and Jena tribespeople had guns and were blocking the roads. The applicant couldn’t go to work unless he snuck out, which affected his ability to earn and income and his children’s ability to go to school.
·In 2016 the fighting between the Managa and Jena got worse again. Also in 2016, the applicant’s dogs were killed – he believes as a threat or warning directed towards him.
·The applicant felt he and his family were unsafe in the village at this time, and so moved into makeshift shelters in the jungle or in settlements in order to hide from the Jenas. [In] April 2016, [their] house in Koip village was burned down – the applicant believes this was done by the Jena as a threat or warning.
·The applicant then wrote to the Provincial Police Commander in Jiwaka, on or around [date] July 2016, but did not receive a response to this letter.
·The applicant and his family kept hiding and travelling through the jungle for about 2 months, until they arrived in Mount Hagen.
·The applicant knew he and his family weren’t safe even in Mount Hagen. Having provided shelter to the Managa, his tribe are considered as involved in the conflict and the Jena will chase his family no matter where they live in Papua New Guinea. Everyone knows everyone in Papua New Guinea and people have ways of contacting others to work out where people are.
·The applicant knows the police won’t protect his family, they don’t consider that tribal disputes concern them and they won’t get involved. As the police from the relevant area have not intervened, there is even less chance of police in other areas providing assistance.
·The applicant knew his family would have to leave Papua New Guinea altogether in order to be safe. They came to Australia in October 2016 on tourist visas. His brothers remain in Koip and are preparing to fight to defend themselves against the Jenas.
·The fighting between the Managa and the Jena continues and is getting worse, the police have not done anything about it. It is not safe for the applicant and his family, he fears he will be seriously harmed or killed, subjected to significant physical harassment and assault.
·There is nowhere in Papua New Guinea they could relocate and find safety due to the personal connections the Jenas have through the country. It would not be difficult for persons from the Jena tribe to find him no matter where in Papua New Guinea he was living.
The statutory declaration had several annexures, as follows:
·Copies of the three letters the applicant wrote to police, dated [date] December 2006, [date] December 2006 and [date] December 2006.
·Photos said to be of the applicant’s house before and after it was burned down [in] April 2016.
·A photo of what appears to be a dead body and a photo of a small group of men holding large guns, with the caption ‘figure 1.0 is the result of figure 2.0’.
·A copy of the letter the applicant wrote to the Provincial Police Commander in Jiwaka Province on or about [date] July 2016.
·A copy of the report written by the applicant entitled ‘[deleted]’ (which was provided to the Police Commander with the above noted letter). The report describes several incident relating to the Jena / Managa conflict and contains several photos said to be pictures of victims of the conflict and firearms used in the conflict.
·Copies of parts of newspaper article clippings: one concerning police brutality, date not visible but from its content appears to be from 2016; one with the title ‘House burnt, gardens destroyed following fight’ with a photo but none of the story visible; one with the title ‘Bus crew claim police brutality’ with two photos but none of the content visible; one with title ‘Tribe: Address police brutality’, no date and only partial content visible; a photo with a caption indicating is shows injuries from a police attack; parts of 5 articles about police offers being charged with murders.
Supporting documentation
The file of the Department of Home Affairs (the Department) contains a copy of each page of the applicant’s passport, issued in Port Moresby in [2015]. It has stamps showing:
·Departure from Port Moresby on [date] February 2016;
·Arrival in Australia at Brisbane airport on [date] February 2016;
·Arrival in Port Moresby on [date] February 2016;
·Departure from Port Moresby airport on [date] October 2016;
·Entry to Australia at Brisbane airport on [date] October 2016;
The Departmental file also contains a newspaper article from The National (a Papua New Guinean newspaper) dated 14 March 2017 which reports on a roadside attack in Jiwaka, in which the driver of a bus and two others were killed, with several others being serious injured with gun shot wounds. The article notes the people affected are from the Wurup-Kaip area and that the bus driver is of the Nemi tribe. It indicates that locals reported the attack is related to a tribal fight that involved the Dena and Maninga tribes over a land dispute which has been going on for 10 years and has claimed many lives.
Departmental interview
While it appears an interview between the applicant and a Departmental officer took place on 13 February 2019, no recording of this interview is available. A typed list of questions appears on the Departmental file with handwritten notes on it. The Tribunal has considered this document but notes its content is quite unclear.
Delegate’s decision
A delegate of the Minister for Home Affairs (the delegate) refused the applicant’s visa application, along with those applications made by his wife and children.
The delegate accepted that there was long lasting tribal warfare in the applicant’s home area, but noted there was no evidence to support the claim his dogs were murdered by the Jena tribe and reasoned that his brothers’ continued residence in Koip (without being harmed) suggested the applicant and/or his tribe were not being targeted as claimed. The delegate accepted that their house was burned down but did not accept this was because the applicant and his family were being targeted.
The delegate noted that the applicant travelled to Australia in February 2016, yet returned to Papua New Guinea before seeking protection, and that his family didn’t apply for visitor visas until August 2016. The delegate considered that this movement history and delay in applying for protection did not support the applicant’s claims to fear persecution.
The Tribunal notes that the delegate’s decision record (at the bottom of page 7) sets out a list of evidence which does not appear relevant to the applicant’s matter. The Tribunal made enquiries of the Department, who indicated this list had been erroneously included. The Tribunal also confirmed with the applicant at hearing that this was the case.
Claims and evidence before the Tribunal
Application for review
An application for review of the refusal decision was lodged on 24 May 2019. It was initially lodged as a combined application for review, made in respect of the applicant, his wife and their [children]. However, following a request made in March 2020 by his wife, the applicant’s review application was separated from hers and those of their children.
With his review application, the applicant submitted a written response to the Ministerial delegate’s decision. It points out what are said to be inaccuracies in the decision record and adds some further detail to some of the applicant’s claims. The Tribunal has considered the entire response, but notes the following points in particular:
·     The applicant explained that there are more than 20 houses on the border with the Managa tribe, 4 of which are permanent houses – including the applicant’s house – and only 2 of the traditional houses were affected besides his, which the applicant considers was done to disguise the scenario.
·     The applicant’s trip to Australia in February 2016 was strictly a religious one, which is why his family did not accompany him. If he had applied for a protection visa then his family would have been the worst affected ones in the village due to his absence. They hadn’t discussed him applying for a protection visa on that occasion. After he returned the children’s passports were finally [issued]. Moving together as a family was the best option.
·     His brothers have a different mother and are above [age range] years of age. They didn’t have any role in his contacts with police and so are not targets. They cannot be harmed for the actions taken by the applicant. They are old and defenceless and cannot provide security or protection to the applicant’s family. The applicant and his family are being targeted, not his brothers.
·     They spent the 2 months in the jungle moving between small hamlets, staying 3 days at most in each hamlet until they reached Mount Hagen. The highlands are covered by dense forests but there are very remote hamlets (with 3 – 4 families) in the jungle, accessible only by bush treks.
·     The applicant was directly threatened and assaulted on several occasions by Managa and Jena. He describes two events in 2007 when he was threatened by members of each tribe who were aware he had gone to the police. He describes an incident in March 2012 when he was assaulted and beaten by Jenas in the community market area. He describes instances of men coming to his workplace looking for him in 2012. He describes a serious assault on his family which occurred in February 2016 when the applicant was in Australia, involving the gang rape at gunpoint of his wife. He also refers to his son being slapped and kicked by Managa men who asked for money.
·     It would be difficult for his family to settle elsewhere in Papua New Guinea because of deep-rooted people connections.
A number of other documents were also submitted with the application for review, as follows:
·Copies of the letters the applicant wrote to police in 2006 (as provided to the Department).
·Copy of the 2017 newspaper article concerning the bus ambush (as provided to the Department).
·Letters from his workplace about his failure to attend work and subsequent dismissal.
·Documents from his workplace concerning his pay.
The hearing
The applicant appeared before the Tribunal on 5 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
At hearing, the applicant confirmed that he still fears harm on the basis of the conflict between the Jena and Managa tribes, his actions in seeking police intervention and his membership of the Nemi tribe. He confirmed he did not fear harm on any other basis. His oral evidence is discussed in more detail below, as relevant.
No further documents were submitted by the applicant at or following the hearing, and no witnesses gave evidence.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
The applicant claims to be a citizen of Papua New Guinea and no other country. A copy of his Papua New Guinean passport appears on the Departmental file. In the absence of any evidence to the contrary, the Tribunal accepts he is a national of Papua New Guinea and that Papua New Guinea is the receiving country for the purposes of assessing his claims.
Risk of harm – Jena /Menanga conflict
The applicant gave evidence at hearing that despite the passage of time, he is still concerned he might be targeted because he tried to get police to intervene in this conflict. He gave evidence that tribal fights can take quite a while, sometimes 20 years, to be resolved and these people will still remember him.
The applicant gave evidence that after the attack on the bus in March 2017, the two tribes were kind of separated and were living apart, and the place where the conflict took place is empty. However, he understands that if members of the tribe meet in town then they still fight – even if they meet up in other parts of Papua New Guinea – such that the conflict is ongoing. He gave evidence that a lot of lives have been lost, so these tribes won’t give up easily. They will still have thoughts of fighting on their minds and this conflict will still be going on for 20 or 30 years.
The applicant gave evidence that people from both the Jena and Managa tribes would want to harm him. He also thinks the Nemi are more generally at risk from the Jena because the Managa peoples came to live with the Nemi, and so there was a perception they were supporting the Managa peoples. He said that he used to support the Nemi tribe financially, so that people within his tribe looked up to him, but that he has had no contact with anyone in his tribe since coming to Australia.
The Tribunal accepts that there was a long running conflict between the Jena and Managa tribes in the district where the applicant is from, including because of the corroborative country information before the Tribunal to this effect, which resulted in violence and deaths in 2014 and 2015.[1]
[1] ‘Tribal clash leaves 12 dead’, The National, 18 September 2015; ‘Jiwaka leaders want end to conflict’, The National, 21 March 2016; ‘Tribes seek support’, The National, 12 April 2016; ‘Three dead, 14 injured in Jiwaka roadside shootout’, The National, 14 March 2017; ‘Tribe leaders forgive attackers’, The National, 17 March 2017.
Although the Tribunal does have some concerns about the credibility of the applicant’s evidence (discussed further below), given the detailed written evidence and consistent oral evidence given by the applicant,the Tribunal is willing to accept that he was threatened in 2007, that he was assaulted in 2012, that people came to his workplace in 2012, that his dogs were killed, that his wife was gang raped, that people demanded food and money from his family and hit his children when this was refused, and that his house was burned down as he has described, because of the conflict between the Jena and Managa tribes, the role of the Nemi in giving shelter to the Manage tribe and his personal efforts to involve police in the conflict.
However, the Tribunal is not satisfied that the conflict is ongoing or that anyone from either tribe would still be motivated to harm the applicant.
As discussed with the applicant, country information before the Tribunal indicates that community leaders were taking steps in 2016 and 2017 to try to end the conflict. Country information before the Tribunal refers to the police commander holding a gathering in March 2016,[2] local councillors convening a meeting in April 2016,[3] and peace negotiations being held in February 2017.[4] While a revenge attack took place during those peace negotiations, which in turn resulted in Jena tribespeople carrying out a revenge attack ambushing a bus in March 2017 (during which a member of the Nemi tribe was killed),[5] community leaders from both the Nemi and Managa tribes were reported to have publicly forgiven those involved in the bus attack in an effort to stop the fighting.[6]
[2] ‘Jiwaka leaders want end to conflict’, The National, 21 March 2016.
[3] ‘Tribes seek support’, The National, 12 April 2016.
[4] ‘7 Shot In Revenge Attack’, Papua New Guinea Post-Courier, 14 March 2017.
[5] ‘Three dead, 14 injured in Jiwaka roadside shootout’, The National, 14 March 2017.
[6] ‘Tribe leaders forgive attackers’, The National, 17 March 2017.
As discussed with the applicant, despite searches being undertaken, the Tribunal was unable to find any reporting about the conflict following the report in March 2017 of leaders publicly forgiving these deaths.
The Tribunal appreciates that the lack of reporting may not necessarily indicate the conflict is not ongoing. It notes that Prime Minister Marape has publicly discouraged journalists from reporting on tribal conflicts vowing to hold those that do to account,[7] and that Reporters without Borders notes in its 2024 Papua New Guinea country report ‘[t]he media sector is relatively underdeveloped and struggles to inform the country’s 8.3 million (sic) inhabitants, who speak at least 80 different languages.’[8] Further, there is information before the Tribunal to the effect that local media are reluctant to travel to areas of tribal conflict due to safety concerns and the difficulty and expense involved in travelling to the highland regions.[9]
[7] ‘Tribal conflict worsens in Papua New Guinea as firearms rewrite the rules’, The Guardian, 27 February 2021; 'Fiji's media freedom ranking jumps, PNG's plummets', Devpolicy, 6 May 2024.
[8] 'Papua New Guinea 2024', Reporters without Borders, 2024.
[9] ‘In PNG Highlands, conflict not limited to election season’, The Interpreter, 29 May 2017.
The Tribunal also notes country information before it about the practice of ‘payback’ in Papua New Guinean society, whereby acts of retaliation are carried out when one group has been harmed by another,[10] information about increased inter-tribal violence in the Highlands region generally,[11] and information that it can take months or years to end inter-tribal conflicts.[12]
[10] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (definition at page 4).
[11] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (paras 2.29 -2.32).
[12] ‘Tribal violence in Papua New Guinea’, International Committee of the Red Cross, 15 March 2022,
However, when the Tribunal asked the applicant how he knew the conflict was ongoing, despite his lack of contact with anyone in Papua New Guinea since coming to Australia, he said that his wife’s sisters give updates to her, which she passes on to him, and that they most recently received an update this way around the end of 2023. The Tribunal does not accept this evidence, as it has credible information before it that the applicant separated from his wife over 2 years ago, that they have not had contact in his period and that his wife has not had contact with her family in Papua New Guinea for over 2 years. That this evidence, lacking in credibility, was given by the applicant is support of his claim to still be at risk caused the Tribunal to seriously doubt his claim that the conflict was ongoing.
The Tribunal also more generally has doubts that he would still be of any particular interest given he wrote letters and contacted the police many years ago, has been out of the country for 8 years and has had no contact with anyone in Papua New Guinea since he departed. On the country information before the Tribunal, it seems clear that many people experienced harm as a result of the conflict and the Tribunal is not convinced that the applicant’s conduct or characteristics was such that he was a person of high interest to the tribes in question, either in the past or now. The Tribunal also notes that the applicant gave evidence that he wouldn’t worry about writing similar letters seeking police intervention in the future as it would be a waste of time.
Accordingly, the Tribunal is not satisfied that there is a real chance the applicant will be harmed by people of the Jena tribe or Managa tribe because of his actions in seeking police intervention in the conflict, because of his membership of the Nemi tribe or for any other reason.
For the same reasons, the Tribunal is not satisfied that there is a real risk the applicant will be harmed by people of the Jena tribe or Managa tribe because of his actions in seeking police intervention in the conflict, because of his membership of the Nemi tribe or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
However, the Tribunal is satisfied that the applicant is a member of the same family unit of each of his youngest four children (who are each under 18 years of age), [names deleted], and that each of those children satisfy s 36(2)(aa) of the Act. Such findings have been made in a separate decision of this Tribunal, made on the same date as this decision. Accordingly, the Tribunal will remit the matter for reconsideration on the basis the applicant satisfies s 36(2)(c)(i) of the Act.
Although somewhat unclear in terms of detail, there is information before the Tribunal that might raise questions as to whether the applicant satisfies s 36(1C) of the Act, because of family violence offences committed in Australia. The Migration and Refugee Division of this Tribunal, in considering an application for review of a decision to refuse a Protection visa under Part 7 of the Act, has no power to determine such issues.[13] However this is noted as an issue for consideration by the Department on remittal.
[13] Section 411(1)(c) and (d) of the Act.
DECISION
The Tribunal remits the matter for reconsideration (including consideration of s 36(1C)) with the direction that the applicant satisfies s 36(2)(c)(i) of the Migration Act.
Stefanie Memmott
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.
…

[2024] AATA 4380

10 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction