1913717 (Refugee)

1913717 (Refugee) [2023] AATA 1518 (27 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr George Harold Pearse (MARN: 0425396)
CASE NUMBER:  1913717
COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:David James
DATE:27 March 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 March 2023 at 1:09pm
CATCHWORDS
REFUGEE – Protection visa – Papua New Guinea – long-standing family feud – fears harm from her father’s jealous relatives – an unreliable and untruthful witness – vague descriptions of alleged past violent incidents and attacks ––delay in applying for protection in Australia – Australian citizenship daughter – unique or exceptional circumstances– Ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 417, 499
Migration Regulations 1994, Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 30 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Papua New Guinea (PNG), applied for the visas on 20 November 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were refugees as defined by s 5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to PNG, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 31 May 2019. The applicants provided a copy of the delegate’s decision with their application for review.
As noted above, the applicants provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicants protection visas having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The primary applicant appeared before the Tribunal on 13 March 2023 to give evidence and present arguments.
The applicants were represented in relation to the review.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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
The issues in this review is whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to PNG they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Claims
The primary applicant, when applying for the visa, outlined her claims for protection as being:
·She left PNG because her life is at risk as her close relatives are attacking her immediate family.
·Her relatives tried to kill her father when she was young and in college. They are jealous because her father can work and earn enough money to educate his children. Her relatives want her father and his children to have nothing and be in the village where there is no government services. They have been doing this to other relatives to.
·That her relatives killed her [brother] ([Mr A]) [in] September 2017 by beating him to death and also injecting him with poison before throwing him in to the nearby river and that these relatives keep doing unfriendly visits to her family home and her workplace. As a result of these visits to her workplace she resigned from her employment.
·She fears that if she returns to PNG she will be attacked and killed by her close relatives.
·She is unable to relocate in PNG as her relatives will find her and attack her wherever she is in PNG.
·She is unable to obtain protection from the police as she has reported her relatives for their threats and the alleged killing of her brother to the CIB (Criminal Investigation Branch) but they are too slow to investigate even though community leaders have witnessed her family being harassed and threatened by their relatives.
The primary applicant enclosed copies of her passport, birth certificate and her employer’s identity card together with the following material with her application:
·Statutory declaration under the hand of [Mr B] dated 18 October 2018 in which he states his son [Mr A], [age] years of age was found dead [in] September 2017. Further that when the family cleaned his son’s body in preparation of burial on [date] October 2017, they found his son’s neck was cracked.
·‘Medical Certificate of Death’ in relation to [Mr A] dated [date] September 2017 indicating that he died at [time][in] September 2017 at home. The certificate records the condition directly leading to death as being respiratory arrest and the cause being drug induced (intoxicated).
·‘Order of Post-Mortem Examination’ in relation to [Mr A] dated [date] October 2017 and purportedly issued by [a] Court. The Tribunal notes as to this document that the surname “[name]” appears to have been pasted onto the document and is not part of the original document.
·‘Initial Report To Coroner’ dated [date] October 2017 in name of [Mr A] recording the date and time of death as being [time] on [date]/10/2017. The Tribunal notes that the typed recoded date has a pen line crossing the date out and a hand-written date of “[date]/09/2017” has been inserted. Further the Tribunal notes that the surname “[name]” appears to have been pasted onto the document and is not part of the original document.
·Letter from the Royal Papua New Guinea Constabulary General Homicide Squad Criminal Investigation Division [dated] 22 January 2018. The letter is addressed to “Whom It May Concern” and signed by [Mr C], Senior Constable [in] which he states as to the death of [Mr A] that it is alleged that while [Mr A] was having his bath suspects waited for him and injected poison into him and he died and was found floating in the river by a cousin. It further states that the body was later removed by relatives and buried and that there is a strong suspicion of their enemies back at the village as being responsible for his death.
·Document titled ‘My Life In Risk’ in which the applicant repeats her claims and states in part that:
I used to live in [City 1] city, Morobe Province. My father [Mr B] is from [Town 1] Eastern Highlands Province. In his village, his relatives have jealous history of killing their close families. During his younger days his relative enemies often tried to kill him. Many of his immediate families have died in the same way. But he carefully used to avoid them. They even tried to attack us his own children by using poison foods and other deadly plans. They got angrier after so many years of them being so unsuccessful in their attempts to destroy us.
Until around beginning of August 2017, those enemies used one of our own cousin by the name of [Mr D], from dad’s family, who came and lived with my family pretending to be so nice and cool with us. I lived a street next to my families. However, he planned with other relatives already and took my younger brother [Mr A] who is [age] years old. He took him to the enemy relatives and they injected him with poison and also attacked him to death. They drowned him into a nearby [river] … After his death they tried to attack my second brother by going to the campus area at [a university] where he did his final year this academic year 2017. Unfortunately all their fatal attempts towards me and my immediate family have failed. However this doesn’t mean they have stopped, it’s an ongoing kind of cultural activity where the bloodline of my family has already been under attack and I’m not sure when would it ends.
Mid of this year 2018, they used to come every night making unfriendly visit into our premises keeping eye on whether one of us could be caught and poisoned as they intended…
Therefore, my intention here is to be moved out from the country to get a long stay Visa in Australia. I believe Australia is a very well cared country with proper hospitality towards the well-being of citizens.
·Letter from the Royal Papua New Guinea Constabulary General Homicide Squad Criminal Investigation Division [dated] 22 January 2018. The letter is addressed to “Whom It May Concern” and signed by [Mr C], Senior Constable [titled] “Life At Risk [Ms E]” in which he states it is alleged that [Ms E]’s smaller brother was murdered [in] September 2017 by the tribal enemies back from the village. He further states that because of this incident this letter is to confirm that her safety is also at risk believing that the enemies are also after her.
·Letter from [Mr F], Secretary of the [City 1] Local Level Government in which he states in part (as relevant) that:
[Ms E]’s Life in Risk…
…I am from Simbu Province and we have been in the community for a long time and I do know her personally.
I have witnessed a community level court held between [Mr B] (defendant) and the complainers (which were his own relative enemies). The court was about the death of [Ms E]’s younger brother, [Mr A]. The complainers were the suspects being called out by [Mr B] to be taken to the CID…
… The complainers claimed they were just suspects so they put more pressure to get compensated. They denied and without respect threatened Mr [B]’s family again.
As a witness to that situation where the court has been taken place. I really saw and can tell that [Ms E]’s life as an eldest in the family is very risky to live in [City 1], also her dad Mr [Mr B] and his family as a whole. Mr [B] is dealing with the CIDs to get all suspects to court. Meanwhile his life is too risky and also his family, or they still be attacked after few years.
·‘Confirmation of Membership’ dated 17 January 2018, indicating that Ms [E] is an active youth member of the [Suburb 1] [Church] and a permanent resident of [Suburb 1], a suburb of [City 1] in the Morobe Province and has been so for more than 10 years.
Department interview
The applicant was interviewed by the Department on 23 May 2019.
Delegate’s decision
The delegate’s decision of 29 May 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the primary applicant is a PNG national, born in [Town 1], Eastern Highlands province, PNG on [date]. The delegate was satisfied that PNG is the receiving country for the purpose of assessing whether the applicants are refugees. The delegate found that the secondary applicant, the primary applicant’s dependent child was a citizen of PNG given that the only declared parent on her birth certificate was the primary applicant, a citizen of PNG. The delegate was unable to confirm the veracity of the documents that the primary applicant provided to the Department (as outlined above at paragraph 16) and given that country information indicated documentation fraud is common and widespread in PNG the delegate did not give much weight to those documents. The delegate accepted that the primary applicant’s brother [Mr A] was deceased but made no findings as to the cause of his death. However, the delegate did not accept that the primary applicant’s father, the primary applicant and her family had been and were being targeted by jealous relatives. Further the delegate dismissed the primary applicant’s claim that her brother was killed by jealous relatives. The delegate was not satisfied that the applicants met the criteria in s 5H(1) of the Act, and were therefore not refugees. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to PNG, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 21 February 2023 the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on Monday 13 March 2023 at 1.00pm. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Pre-Hearing submissions/material
On 4 June the primary applicant forwarded the following three (3) emails to the Tribunal:
·The first was titled; ‘Written letter for my father’s young days attack’ and in part stated that:
…When my dad was going to school his real uncle [Mr G] was angry and tried to attack him by using poison foods and other deadly plans like meeting him where no one and kill him. After finished his school he married to my mum and got the job. He was then planned to be attacked by his real brothers and sisters. Because he was working. My close relatives come in friendly way but with bad motives to figure out ways to come and attack us his children or my father, to be killed somehow with no evidence to find out.
They got angrier and their plan was to kill my dad or myself because I am firstborn and working. And also my second brother who is working and other four brothers because there are boys.
Until 2017 my close relatives sent my cousin [to] come and stay at my family’s house pretend to be friendly any call close relatives to be ready to killed my brother. One morning he took [Mr A] out to close relatives and both didn’t come back till next day. He came by himself pretend nothing happened. When my mum asked him about my brother he said I don’t know… Not long my dad’s uncle [Mr G] came saying he was at the Riverside, he was the only one who tried to attack my father long ago, no long my auntie [Ms H] came saying she was at Riverside two, 10 minutes later a guy running to my house saying my brother was dead in river. It was a sudden shock my mother fell and fainted. All my close relatives come from no way. They kill [Mr A] my brother.
·The second email was titled; ‘written letter for the coroner’ in which the primary applicant in part (and as relevant) states:
I write this letter regarding the copy paste surname [on] coroner letter. This is a original Coroner letter from the courthouse. My dad didn’t type the letter, it was reported by the reporting Constable officer [Mr C] and type by the clerk officer of the [courthouse]…
The surname written was a typing error by courthouse clerk when written the coroner.
My father didn’t realise the typing error word ‘[name’]. I am the one saw the typing error surname [after] getting the coroner copy from my father. I saw before lodge the application and I copy paste [the] word [name]…
·In the third email titled; ‘written letter for my travels 2015 and my life in risk in 2017 until now’ the primary applicant states that:
In 2015 I travel to visit friends in Perth.
They provide me tourist Visa. And in 2017 I travel to attend a church camp in Sydney.
When I return on 2017 October from camp my brother was dead and back we buried him at [City 1]. We put the statement to police to arrest my close relatives. Without care about the law and order they arranged our community court to cover up also arrange all bad plans by arranging drunkard drives to bump me and my dad by a [car], while standing at the community court place. The drivers were drunk and missed us. They swing hands out and hit my dad and swear me. They were not scared or the law and order community leaders. A group of guys telling me they will rape me and my sister.
Swearing my dad myself my brothers so heartbreaking for me. No one stood up to help us, police didn’t come to secure us. Even we advise police.
They went on and do unfriendly visits at my workplace. Even visit the area I rent. Not safe for me I resign and came to Cairns in 2018 to apply for protection Visa. Yes I have lack of knowledge about that Visa. I went back to [City 1] thought everything will be okay. I moved to my family house. It went worse the close family relative comes in the night to attack my brothers, my dad or myself. When we took it to police they came out clearly without scared of police.
I could not work again or live freely in [City 1] even other parts of PNG because they can travel to attack me. I also could not live with my parents as a mature person, I will have to live by myself and work. Which is not safe at all.
I came back to Brisbane last September [and] seek rails advice and lodge my application.
Back in PNG my brothers are not sleeping well. They are exchanging with bus knives to look after our area. Even my daughter is going to school with my mum walking her and walking back. It’s still not safe at all.
All happened was witnessed by community leaders of law and order. I have attached [Mr F] letter.

The primary applicant also forwarded the documents which she had previously provided to the Department and are outlined above at paragraph 16 to the Tribunal. Additionally, the primary applicant provided to the Tribunal her PNG ‘Certificate of Birth Entry’ and the secondary applicant’s ‘Certificate of Australian Citizenship’ dated 7 January 2021.
On 7 March 2023 the Tribunal received a written submission from the applicant’s representative Mr George Pearse of ‘Career Up’ in which he identified that he was acting for the applicants on a pro bono basis. In this submission the applicant’s representative on behalf of the applicant’s concedes that the applicants do not engage Australia’s obligations under the refugee Convention but argue that the applicants meet the requirements of the complimentary protection provisions. Further it was submitted to the Tribunal that should the Tribunal affirm the decision of the delegate to refuse the Visa applications that the Tribunal should refer this case to the ministerial intervention unit requesting that the Minister consider using his or her powers under s 417 of the Migration Act to intervene in the case and substitute a more favourable decision. The submission outlines the summary of the applicant’s claims as being:
The central claim made by the applicant is that she cannot return to PNG because she will be hunted down and eventually killed by her cousins as a result of a long-standing family feud which is already claimed the life of her younger brother, [Mr A]. There is no claim that she will be immediately killed upon her return, but that she will be at risk of attack immediately and killed at some future point. Now that her mixed-race daughter [Miss I] is born and applicant for the Visa, this claim is modified to include her daughter…
At time of application, the core of the claims was that there has been considerable ongoing standing over the applicant’s father and his descendants by his brothers and their descendants, all of whom hail from [a] relatively large village in the district of [Town 1], Eastern Highlands Province, Papua New Guinea…
The violence on one brother by the others ongoing, persistent, and is escalating. The most serious actual consequence of the attacks to date was the murder of the applicant’s younger brother [Mr A]. In that incident, the young man was lured away from the family home, drug, then thrown in the river where he drowned.
However, most of the time, the pattern is that the applicant’s cousins from [a] Village come to [Mr B]’s three room house in [Suburb 1], [City 1]. After the cousins arrived, they either come to the door to ask for accommodation and assistance or just sit outside under the trees, day and night, talking and waiting. The writer is advised that this remains the case, and that more serious violence occurred recently.
The submission included a statutory declaration under the hand of the primary applicant dated 4 March 2023 in which she repeats her claims has outlined in her application and earlier submissions to the Tribunal, and in which she further states that her daughter [suffers] from a strong cough and that the health services in Papua New Guinea are not of a standard to ensure her daughters safety. Also enclosed with the submission was a statutory declaration under the hand of [Mr J] , the primary applicant’s brother in which he states that the coroner’s report is true and correct except that the surname of the deceased, which is [name] should have been recorded as [name], and that the correction which has been made on the report was done so by the primary applicant to correct that administrative error.
Additionally, enclosed with the submission was a letter under the hand of Senior Magistrate [and] [Secretary] & Urban Court Clerk [dated] 6 January 2023 in which it is reported that:
The situation regarding the safety of [Mr B]’s family is not yet completely settled.
Country information
The Tribunal has taken into account the DFAT Country Information Report Papua New Guinea, 6 September 2022, as relevant, including the information under the heading of ‘Wantokism’ where it states that:
‘Wantokism’ is a system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society. Wantokism affects most aspects of contemporary life in PNG, including in business and government. In the Tok Pisin language, Wantok means ‘One Talk’, referring to the language of the tribe or clan to which a person belongs. In PNG, the overall welfare of the tribe and its members is paramount. Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures those members of the tribe less able to look after themselves are supported.
In contemporary PNG, wantokism includes additional relationships, such as those between school classmates or work colleagues. People who gain a position of power or responsibility – for example, as a politician, public servant or business owner – are expected to look after their wantoks. Business people are expected to make significant contributions when traditional obligations are needed, such as compensation or ‘bride price’ payments. Senior politicians are expected to contribute even larger sums to their wantoks. Wantokism may involve state officials pressured to protect the interests of their wantoks above their legal duties to provide services or protection impartially to an individual. Officials can be reluctant to uphold the legal rights of those outside their wantok group if it requires them to act against – and especially prosecute – those within their group.
‘Inter- Group Violence’ at 2.27 to 2.32 of the report where at 2.27 and 2.31 to 2.32 it is reported 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.
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.
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.
‘Police’ at 5.3 to 5.6 in which the report provides at 5.5 and 5.6 that:
The effectiveness of the RPNGC is severely limited by resource and staffing constraints. The police are routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. Sources reported that a trial in 2022 in Central Province for serious sexual offences against a child only went ahead because of NGO support in the form of petrol funding for the police and necessary accommodation provided to the complainant and her mother. One close observer of the RPNGC suggested that, while the full complement of police stood at around 5,500, only around one quarter of these were fully effective as police officers. RPNGC officers endure poor working and living conditions, including low remuneration; frequently need to assert themselves in violent environments, often without weapons or protection; have family/clan obligations to meet; and are generally poorly trained, particularly on human rights. Some police are also disinclined to act in response to some GBV, SARV or tribal fighting offences due to sympathy for the alleged perpetrator(s).
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.
And ‘Prevalence of Fraud’ at 5.23 of the Report it is stated that:
Document fraud occurs frequently in PNG, particularly in relation to identity documents. It is reportedly very easy to obtain birth certificates in any name. Fraudulent supporting documents, including fake bank certificates and letters of invitation, can also be readily obtained. It is reportedly not uncommon in cases of visa non-compliance for people to re-apply under a new identity.
Review hearing – 13 January 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language. The Tribunal explained to the primary applicant that the hearing would consider the primary applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal as to her understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criterion explained that she had been provided with advice and an explanation of the criteria by her representative and that she understood same.
The primary applicant confirmed her claims as those that had been outlined in her application, the accompanying documents and the email submissions and accompanying documents that she had forwarded to the Tribunal. Further the primary applicant adopted her representative’s submission which was to the effect that she does not engage Australia’s obligations under the Refugee Convention. In reply to the Tribunal’s clarification the primary applicant indicated that she understood that she did not meet the requirements of the refugee criterion as provided for by s 36(2)(a) of the Act
The primary applicant’s evidence at the hearing was broadly consistent with her claims in the application for the visa but lacked detail and was vague as to the alleged past attacks upon her father by his relatives. She stated in oral evidence before the Tribunal in summary and as relevant that:
·Her father’s relatives had tried to kill her father many times. She explained that she had been told by her family that her relatives would come in the night to her father in their village when he was by himself, and they use knives but had been on many occasions chased away by other family members.
·She explained that the family members had become jealous because when her father was younger, he had successfully completed his schooling which resulted in him obtaining government employment and then being able to purchase a house in [City 1] and provide an education to his children.
·She further explained in reply to the Tribunal’s questions that notwithstanding her fears of retribution from her father’s relatives which she stated she had held since 1997, and although she had come to Australia on several occasions prior to her last arrival in September of 2018, she had only made application for the visa on 20 November 2018. She further explained that her earlier visits were for specific reasons such as her attendance at a youth camp on one of those occasions and not for the purpose of seeking protection in Australia.
·As to her seeking protection in Australia together with her daughter [Miss I] who has since been granted Australian Citizenship, she conceded she has left her other daughter now about [age] years of age with her mother in [City 1], PNG. The primary applicant stated that her daughter in [City 1] was safe as her mother takes her to and from school and protects her. She further explained that her father and mother and her siblings but for one living in Port Moresby also live in the family home at [City 1].
·In response to the Tribunal’s query as to examples of her father’s relatives seeking to harm her family, she explained that there had been many incidents of these relatives trying to kill her father and other members of the family. The applicant relied upon the documents she had provided relating to her family’s belief that her brother [Mr A] had been taken to a river in [City 1] by her cousin [Mr D], where he was then bashed and poisoned before being placed into the river and drowned. The Tribunal in accordance with the provisions of s 424AA of the Act raised with the primary applicant the concerns of the Tribunal as to the documents provided in relation to [Mr A] ’s death. The applicant did not seek any further time to respond in relation to the Tribunal’s concerns as to these documents. Notwithstanding the obvious alteration to the Order of Post-Mortem Examination which the primary applicant had indicated she had altered by her inserting her brothers correct surname. The Tribunal queried whether there had in fact been a post-mortem given other material that was before the Tribunal including a letter purporting to be from the PNG police indicated that the family had collected [Mr A]’s body and attended to his burial. The explanation that the primary applicant provided to the Tribunal was to the effect that there had not yet been a post-mortem and the family was continuing to request for such an examination. The Tribunal noted that the purported order for post-mortem was dated 23 October 2017 and as such it seemed that the matter had been finalised yet contrary to the order no post-mortem had been conducted. It was further noted by the Tribunal that on the document ‘Initial Report To Coroner the surname [had] also been inserted onto that document and the date of [date] October 2017 recorded as the time of death had been crossed out and replaced with a hand-written notation of [date] September 2017. Equally the Tribunal drew to the primary applicant’s attention that the two purported letters from the Royal Papua New Guinea Constabulary had a letterhead referring to the Criminal Investigation Division yet was signed by a Senior Constable of the CIB (Criminal Investigation Branch). Further these police reports made no mention of a post-mortem examination and only spoke of allegations relating to the primary applicant’s brother ([Mr A]) supposed murder. The Tribunal also noted that in the absence of a post-mortem report and a determination from the coroner the Tribunal was inclined to accept the details and cause of death in relation to her brother [Mr A] as recorded on the Medical Certificate of Death which did not contain any alterations or amendments. The Tribunal highlighted in accordance with the procedure prescribed in s 424AA of the Act that the primary applicant’s claims that her brother [Mr A] had been murdered by her father’s relatives was not consistent with the cause of death recorded on the certificate. Additionally, it was noted that the letters from the PNG police did not indicate that there were any ongoing investigations being conducted by the police as to this allegation of murder. The primary applicant’s response was vague but to the effect that the police had not charged anyone and she did not know why there had been no police action taken in response to her family’s complaints.
·When questioned about other incidents involving attacks upon her family by her father’s relatives, she explained that her brother [Mr J] had recently been attacked in the night by men carrying bush knives. She stated that he now did not go out at night and was careful when going to and from the school where he works. The primary applicant under questioning conceded that her brother [Mr J] did not recognise any of his attackers and that none of her father’s relatives had been charged by the police in relation to this recent attack. She further explained that her father’s relatives had also in the past killed other relatives who had been successful and who they were jealous of. When asked to provide details of these alleged murders the applicant was only able to say that at some time in the past a cousin had been [killed], another cousin had been killed in her father’s home village of [Town 1], whilst another cousin had been killed in Port Moresby. The primary applicant was unable to provide any information to the Tribunal as to how these alleged killings had occurred, when they had occurred and which of her father’s relatives had been involved in these alleged murders. The only explanation and details that the primary applicant could provide to the Tribunal was that her uncle [Mr G] and her father’s cousin [Ms H] are suspected by her family as being involved and possibly ordering and coordinating these attacks upon successful relatives throughout PNG.
·As to the primary applicant’s allegations in relation to her uncle [Mr G] and her father’s cousin [Ms H] the primary applicant conceded that there had been no complaints made to the PNG police in relation to [Mr G] and [Ms H] as she understood. Further she was unaware of any police investigations having been conducted, or presently being conducted in relation to [Mr G] and [Ms H] as to these allegations relating to the alleged murder of her successful relatives in PNG.
·In relation to her own observations, she described a single incident which resulted in her resigning from her employment and coming to Australia to seek protection. She described this incident as involving her cousin [Mr D] who she believes had been involved in the killing of her brother [Mr A] standing outside her place of employment one afternoon. Later that evening her cousin [Mr D] came to her accommodation and spoke to her. She explained that it was her belief that he was checking out her accommodation so as he could make arrangements for himself and possibly other family members to wait outside her accommodation for the opportunity to attack and/or kill her when she attended the external toilet at her accommodation. When asked by the Tribunal as to what other information she had to support her fears that her cousin [Mr D] had intended to do her harm she was vague, unresponsive and unable to provide any further information but for [Mr D]’s attendance outside her place of work and later at her accommodation.
·When further questioned as to threats that she had witnessed and/or received from her father’s relatives she said that threats had been made to her when her family attended the Local Court (Local Level Government) proceedings in 2017 as described in the report from community court as described above at paragraph 16. She stated that at those proceedings her cousin [Mr D] made threats of rape to her. She explained that these threats had occurred prior to the incident involving [Mr D] standing outside her place of work and later coming to her accommodation.
·The primary applicant when discussing her daughter and her daughter’s Australian citizenship she also raised her fears for her daughter if she was returned to PNG with her daughter. She explained that her daughter’s father was not involved with her daughter and if she returned to PNG with her daughter she was concerned about the lack of medical support in PNG and further that her daughter was at risk of rape as she was of mixed race and a different colour to other PNG residents. In response to the Tribunal’s query as to why she held fears for her daughter arising from her mixed race she stated that she was aware of an incident in which a mixed-race girl had been bashed and raped in [City 1], PNG. However, when queried as to the details of this supposed attack, the applicant could only indicate that she had been made aware of it by family and friends and did not know any specific details.
·The primary applicant also informed the Tribunal that as her father had passed away in 2021 (a certificate of death was provided to the Tribunal by the primary applicant with her representative’s submission of 7 March 2023) she was now in greater danger as she was her father’s eldest, first-born child. In regard to this statement the Tribunal queried the primary applicant as to why her daughter in PNG, her first born was not in greater danger. The primary applicant replied that it was the first born who was in the greatest danger and her daughter was being supported and protected by her mother in [City 1]. In response to the Tribunal’s suggestion that the applicant could return to [City 1] and also reside with her PNG daughter and her own mother she explained that as her other siblings but for one who resides in Port Moresby all live with her mother there would not be enough room at the family home to accommodate her and her Australian daughter.
FINDINGS AND REASONS

The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the primary applicant claims to be citizen of PNG and provided a copy of her passport, based on this material the Tribunal finds that the primary applicant is who she says she is, and a national of PNG. PNG is therefore the receiving country for the purpose of assessing the primary applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal; required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
Fears of the primary applicant that her family and herself are being targeted for violence and killing by her father’s jealous relatives
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal is satisfied that the primary applicant’s father originated from [Town 1] in the Eastern Highlands Province of PNG and that her father had been the only member of his family to complete high school and had later obtained employment with the PNG government which over time allowed him to purchase a home and provide for his family in [City 1]. The Tribunal is also satisfied that the primary applicant’s father, Mr [B] died on [date] October 2021.
The Tribunal does not accept the primary applicant’s claim that her father’s relatives are jealous and have been targeting him and his family for violence in response to her father’s perceived economic and social success. Noting the country information above as to ‘Wantokism’ and ‘Inter-Group Violence’ and for the reasons below the Tribunal finds that the primary applicant’s claims does not seem reasonable and likely.
Claim that her father’s relatives’ have attempted to kill her father
As to the claim that her father’s jealous relatives have tried to kill him many times her evidence was that she had been told that these relatives had come in the night to her father’s house in his village with knives but that other family members had chased them away. This was the only example that the primary applicant could provide to the Tribunal but for saying there had also been attempts to poison her father as to her claim that there had been many attempts to kill her father by his jealous relatives. Given the serious nature of these allegations it seems implausible that her father had not provided greater detail of these alleged attempts on his life to the primary applicant and/or other family members. Equally given his level of education and long-standing government employment it is equally implausible that her father had not made complaints to the police about these alleged incidents and that there would not be evidence as to their investigations. Therefore given the vague nature of this allegation and the lack of specific details provided to the Tribunal by the primary applicant the Tribunal is not satisfied that there have been numerous attempts on the life of her father by supposed jealous relatives of her father.
Claim that her brother [Mr A] was killed by jealous relatives
The primary applicant relies upon her and supposedly her families’ belief that her brother [Mr A] was murdered by jealous relatives and specifically had been lured to a nearby river by one of her cousins where he was there bashed, poisoned and thrown into the river where he drowned. Given the alterations and inconsistencies that the Tribunal identified in the documents that the primary applicant has provided to the Tribunal in support of this claim together with the country information as to the ‘Prevalence of Fraud’ the tribunal has given little to no weight to these documents but for the ‘Medical Certificate of Death’ in relation to [Mr A]. That death certificate does not support the primary applicant’s claim that her brother [Mr A] was murdered by jealous relatives. Equally the Tribunal having noted that there is no evidence of any police investigation having found evidence of this alleged murder the Tribunal is not satisfied that the primary applicant’s brother was murdered by her father’s jealous relatives.
Additionally, as to the primary applicant’s evidence that other successful cousins have also been murdered by her father’s jealous relatives at various locations throughout PNG the Tribunal finds that the primary applicant’s evidence as to this claim was vague and without detail. Given the significance of these claims it is not accepted by the Tribunal that the applicant would not have been told or obtained herself greater detail and information as to these claims. The Tribunal notes that the primary applicant was not able to name or specify who these relatives were and how they died and could only inform the Tribunal that one had [died], another in her father’s home province and the third in Port Moresby. Given the vague nature of this claim the Tribunal is not satisfied that these unknown unnamed cousins have died and if they had died that they were murdered by her alleged father’s jealous relatives.
Delay
The primary applicant claims to have feared her father’s jealous relatives since 1997 yet she has travelled to Australia on four occasions from February 2015 prior to her arrival in Australia in September 2018 after which she made her application for the visa. Given the only explanation that has been provided to the Tribunal as to this delay in making her application for the visa was that she had travelled to Australia on the earlier occasions for other reasons such as the attendance at a Youth camp the Tribunal finds that this delay is inconsistent with her claims. In that regard, the Tribunal has noted that in Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a 3-month delay in the lodgement of a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
Equally the applicant’s departure from PNG for Australia to seek protection whilst leaving her eldest daughter in [City 1], PNG with her own mother is inconsistent with her claimed fears that she and her family are at risk of violence at the hands of her father’s jealous relatives. It is implausible that the primary applicant would leave her daughter with her family in [City 1] if she honestly held fears for herself and her families’ safety.
New claim that her brother [Mr J] has been attacked by jealous relatives
The primary applicant relies upon the alleged recent attack on her brother [Mr J] in December 2022 at the family home as supporting her claims of fear of harm from her father’s jealous relatives. In this regard the primary applicant’s evidence was that her brother had been attacked by unknown persons with bush knives at the family home in [City 1], and that she and her family suspect that the attack was by her father’s jealous relatives. However, in reply to questions from the Tribunal the primary applicant conceded that her brother [Mr J] had not identified any of his attackers and did not recognise any of those attackers as relatives of his father. The Tribunal given the vague description of this attack and that none of the attackers involved in this alleged attack of [Mr J] have been identified and/or charged by the PNG police is not satisfied that this alleged attack was perpetrated by the primary applicant’s father’s jealous relatives.
Claim of being targeted by her father’s jealous relatives and that she will be killed by those relatives if she returns to PNG
The primary applicant relies on her allegation that her cousin attended her workplace and later her accommodation prior to her resigning from her employment and travelling to Australia as an incident that supports her fears of harm from her father’s jealous relatives. Her evidence was to the effect that her cousin who she alleges was involved in her brother [Mr A]’s alleged murder had come to see her so as he could ascertain a way to harm her. She alleges that the purpose of his visit was to wait for her in the night to leave her accommodation and attend the external toilet to her accommodation where he and other jealous relatives would then assault and/or kill her. However, her evidence was also to the effect that no threats were made to her on this occasion by her cousin, however she relies on his earlier threats to rape her when they met at the community court proceedings as being the basis for her fears. Given the Tribunal is not satisfied that her brother [Mr A] was murdered by her cousin and other jealous relatives of her father, the Tribunal is equally not satisfied that her cousin when attending her workplace in [City 1] and later her accommodation on this occasion had any intentions to harm her.
The primary applicant also now relies on her father’s death in 2021 as having now increased the risk of harm to her as she was her father’s eldest child. Noting that the primary applicant’s eldest daughter and her mother remain in [City 1] with her other four brothers, two of which are married, and all reside with her mother and that the only incident of violence that has been reported against any of them is the recent December 2022 attack on her brother [Mr J] by unknown persons. The Tribunal is not satisfied that the primary applicant has been or will be targeted for violence by her father’s jealous relatives.
The Tribunal for the reasons above finds the primary applicant to have been an unreliable and untruthful witness who could only provide vague descriptions of alleged past violent incidents and attacks upon her father and other successful relatives. The Tribunal for these reasons has rejected the primary applicant’s evidence as to her claims of fearing harm in PNG in their entirety.
Refugee criterion – primary applicant
Based on the information before it, the Tribunal rejects the primary applicant’s claims in their entirety and having considered all of the primary applicant’s claims both individually and cumulatively, and considering the cumulative effect of the primary applicant’s claims finds that the primary applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the primary applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the primary applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection – primary applicant
Having concluded the primary applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the primary applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the primary applicant’s claims meet the refugee criterion. The Tribunal having found the primary applicant to have been an unreliable and untruthful witness is also not satisfied that the primary applicant meets the complementary protection criterion as the Tribunal has rejected the evidence and claims of the primary applicant in their entirety for a lack of credibility. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to PNG, that there is a real risk that the primary applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the primary applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings – primary applicant
Additionally, there is no suggestion that the primary applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
Secondary Applicant
Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australia citizens; see s 4 and s 29 of the Act. The issue in this case in whether the secondary applicant is now an Australia citizen
The Tribunal is satisfied on the evidence before it that the secondary applicant is now an Australian citizen. It follows that the secondary applicant does not satisfy the requirements of s 36(2) of the Act and cannot be granted a protection visa.
MINISTERIAL INTERVENTION
The Minister has issued guidelines explaining the circumstances in which the Minister may wish to consider exercising his or her public interest powers under s 417 of the Act. The guidelines indicate that the Minister will generally only consider exercising his or her public interest powers in cases which exhibit one or more unique or exceptional circumstances. Departmental policy (PAM3) concerning Ministerial intervention provides, as a relevant factor, ‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’.
In this regard, the Tribunal acknowledges the personal circumstances of the primary applicant including her past relationship with an Australian citizen which resulted in the birth of her Australian child, [Miss I], on [date]. The Tribunal notes that the applicant’s child, the secondary applicant has only lived in Australia and the expected and likely psychological harm that may arise for both the primary applicant and her Australian child, the secondary applicant if the primary applicant was to return to Papua New Guinea without her child or returned to Papua New Guinea with her child who has only known Australia as her home.
When considering all of the applicants’ circumstances, the Tribunal considers it appropriate to support the primary applicant’s request to remain in Australia on a permanent basis so as she and her Australian child the secondary applicant may continue to reside in Australia. In considering the applicants case and the Ministerial guidelines relating to the discretionary power set out in PAM3 Minister’s guidelines on Ministerial powers: ss 351, 417, 501J of the Act, and noting that s 417 of the Act gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so, the Tribunal considers that the circumstances of the applicants’ case raise ‘unique or exceptional circumstances’ that justify possible intervention by the Minister. Such circumstances are:
·Compassionate circumstances regarding the psychological state of the primary applicant and her [age]-year-old Australian child, the secondary applicant (an Australian citizen), arising from the possible break-up of their family unit if the primary applicant was returned to Papua New Guinea or the psychological state of the primary applicant’s child (the secondary applicant) if she returned to Papua New Guinea with her mother, in circumstances where the secondary applicant having only known Australia as her home for her entire life.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David James
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1518

27 March 2023

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Administrative Law

Immigration

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Natural Justice

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