1915304 (Refugee)

1915304 (Refugee) [2023] AATA 3202 (3 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Anthony Stolar (MARN: 9701011)
CASE NUMBER: 1915304

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:David James
DATE:3 July 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 03 July 2023 at 12:05pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – political opinion – election violence – family of party supporters – tribal violence – payback system – fear of killing – family home destroyed – delay in applying for protection – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 411, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 June 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 7 June 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person 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 applicant 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 applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 14 June 2019. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa 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 applicant appeared before the Tribunal on 27 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted in the English language.
The applicant was 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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review is whether the applicant has 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 applicant was returned to PNG he 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 applicant will suffer significant harm as defined in s 36(2A) of the Act.
Claims
The applicant, when applying for the visa, stated that he had been a resident of [Town 1 in] the Southern Highlands, PNG prior to his most recent Arrival in Australian [in] October 2017. He outlined his claims for protection (as summarised) as being that:
·During the 2017 PNG general elections there were indiscriminate killings and violence between the supporters of the rival candidates in [Town 1].
·Two of the applicant’s family members who were local businessman were killed in the violence and most of his tribe lost their properties.
·Post-election violence by supporters of two of the candidates is continuing notwithstanding that William Powi won the election.
·The applicant has been named as a person to be killed by the opposing tribe because of his support of the current Governor and because he is educated and wishes to return to the highlands.
·His parents have had to relocate to Lae in Morobe Province and live in hiding there after their house in [Town 1] was destroyed in the violence.
·The payback violence will continue due to the challenges to the election result in the Court of disputed returns.
·Police have been unable to control the violence.
·He has [a disability] and cannot protect himself and/or relocate elsewhere in PNG as his political and tribal opponents have tentacles throughout the corrupt government and will locate him anywhere in PNG.
The applicant also provided the following supporting documentation to the Department for consideration with his visa application:
·Statutory Declaration under the hand [Declarant A], dated 20 February 2018 at Lae;
·Statutory Declaration under the hand of [Declarant B] (applicant’s aunty), dated 17 May 2018 at Lae;
·Statutory Declaration under the hand [Declarant C], dated 17 May 2018 at Lae;
·Statutory Declaration under the hand of [Declarant D], dated 17 May 2018 at Lae;
·Statutory Declaration under the hand of [Declarant E], dated 17 May 2018 at Lae;
·Statutory Declaration under the hand of [Declarant F] (applicant’s uncle), dated 20 February 2018 at Lae;
·Joint Statutory Declaration under the hands of the applicant’s parents, [named], dated 17 May 2018 at Lae;
·Media reports as to the 2017 election violence in [Town 1]; and
·A purported letter from the PNG Constabulary under the hand of [Officer A], dated 19 February 2018 which addresses the 2017 election violence in [Town 1].
The Statutory declarations speak of the 2017 election violence in [Town 1] and that other family and tribespeople have relocated predominantly to Morobe province. The applicant’s parent’s declaration and that of [Declarant E] both allege that the applicant has been listed to be killed by their opposing tribe.
As to the last item above the purported letter from the PNG Constabulary the Tribunal notes the letter head is in colour with a shaded shadow in the letterhead and does not provide any standard contact telephone numbers or a street address for the provincial Police Head Quarters which are referred to on the letter head as ‘Head Quarter’.
Department interview
The applicant was interviewed by the Department on 9 April 2019.
Post interview submission
The applicant’s representative in a post interview submission dated 8 May 2019 stated at paragraphs 3 to 7 of that submission that:
It has been agreed by the delegate and the PA, that should the PA return to [Town 1] he would be subject to a risk of significant harm.
The crucial question then becomes can the PA be returned to PNG and in particular Lae and/or Port Moresby without suffering significant harm.
Evidence has been presented by the [Senior Officer A] of the Southern Highlands province of the Royal Papua New Guinea Constabulary that the PA would be easily recognised in PNG because of his disability, education and language. The key point in the [Senior Officer A’s] letter of support is that the PA would not be safe anywhere in PNG.
Evidence from the inspector of [Senior Officer B], [Region 1] Command of the Royal Papua New Guinea Constabulary in his letter of support attest to the fact that there is no proper law and order in PNG and that the PA will have no protection.
It is our view, given the evidence from the Royal Papua New Guinea Constabulary the PA would not receive protection in the PNG such that there would not be a real risk that the PA would suffer significant harm.
Accompanying the submission were the following supporting documents:
·Letter of support under the purported hand of [Senior Officer A] [Mr A], [position specified in] Southern Highlands; and
·Letter of support under the purported hand of [name], [Senior Officer B], [Region 1] Command – [Section 1].
The Tribunal notes that the above letters of support purportedly from the Papua New Guinea Constabulary speak of the [Town 1] election violence and that the applicant would be easily recognised because of his [disability], his dialect and that he has been previously known to some of the rival tribe members and as such he would not be able to safely relocate within PNG. The Tribunal notes that these letters of support are on different formatted letter heads notwithstanding that they are both purported to be from the PNG Constabulary. The first letter is dated and appears to have the standard reference title section, a contact telephone number and address of the relevant Command. However, the second letter purportedly from the [Region 1 Section 1] does not have the title section and has a smaller size insignia and bears no address or telephone contact details.
Delegate’s decision
The delegate’s decision of 5 June 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant was originally from [Town 1] in the Southern Highlands, that he completed his high school in [Town 2] and later in Port Moresby, that he has studied and worked in Australia since 2009 and that his parents were present in [Town 1] during the 2017 election violence. The delegate further accepted that although the applicant was not at [Town 1] during the 2017 election violence, he could be construed to be a supporter of the successful candidate and could be targeted for violence if he returned to [Town 1]. The delegate did not place any weight on the purported PNG police letters of support and was not satisfied that the applicant could not safely relocate to Lae or elsewhere in PNG. A such the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 17 May 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Tuesday 27 June 2023 at 9:30 am. This correspondence advised the applicant 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 applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
The applicant’s representative provided the applicant’s hearing response to the Tribunal on 2 June 2023 in which it was indicated that the applicant would be attending the scheduled hearing to give oral evidence. It was indicated that the applicant would be relying upon the Statutory Declarations and photographic evidence which he had earlier provided to the Department and/or the Tribunal.
Pre-hearing submission
The applicant’s representative forwarded written submissions to the Tribunal on 20 June 2023 which were dated 19 June 2023. These submissions addressed the applicant’s visa history, the relevant protection criteria and provided at paragraphs 12 to 22 and in the conclusion of the submission that:
That pursuant to s5J(1)(b) of the Act, the tribe that the PA originated from have different physical and facial features and speak a different dialect to most that are not from the Southern Highlands. Therefore, it is contended that no place is safe for the PA in PNG.
Further, even though his parents moved to Lae to avoid tribal paybacks, the PA’s mother, father and [a sister] were murdered in Lae in 2021. Prior to his sister being murdered, she was raped.
It is common ground that the PA was originally from [Town 1] and that his family were in [Town 1] when the tribal violence erupted in the 2017 general elections and that his family fled [Town 1] and their property was destroyed.
Country information suggests that there are no effective protection measures available to the PA should he return to PNG.
Given that the PA satisfies the legislative requirements pursuant to s 5J(1)(c) of the Act, the PAs persecution relates to all areas of PNG and is well-founded. Therefore, he satisfies s 36(2)(a) of the Act and is a refugee and is a person in respect of whom Australia has protection obligations.
As the PA satisfies the refugee criterion it is not necessary to consider complimentary protection criteria pursuant to s 36(2)(aa) of the Act.
The PA has a [disability] and cannot defend himself and there are considerable grounds for believing that are necessary and foreseeable consequence if the PA is removed from Australia, there is a real risk that he will suffer significant harm if return to PNG. This has been supported by the latest DFAT country information report.
Given what has happened to the PAs parents and his sister in 2021, there is a real chance (that is not fanciful) that should the PAB removed to Lae, he will suffer the same fate as his deceased family. They suffered the ultimate significant harm.
The PA satisfies s 36(2)(aa) of the Act, and hence complimentary protection is also available to him.
The PA has either studied or worked in Australia for over 10 years and is currently employed by [Employer 1] as [an occupation 1]. He has no ties back to PNG as his immediate family has been killed.
Country information and the PAs evidence of his fear of being persecuted demonstrate that the PA has a valid claim for protection. It is the writer’s view that Australia has complimentary protection obligations to the PA. However, a finding is not necessary under complimentary protection obligations as evidence is presented that the PA is a refugee.
Supporting media reports, travel advisory information and documents in support of the applicant’s present employment were also provided with this submission to the Tribunal.
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 ‘Inter- Group Violence’ at 2.27 to 2.32 of the report where it is reported at 2.27 to 2.28 and 2.31 to 2.32 that:
Tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.
Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced.
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.
Under the heading of ‘Political Opinion (Actual or Imputed)’ at 3.5 to 3.7 where it is reported at 3.6 and 3.7 that:
Serious flaws, including bribery and voter fraud, have been reported in the course of PNG elections. Some areas, notably the Highlands Region, have experienced significant election-related violence, often resulting in multiple deaths, as well as severe property damage. Serious election-related violence in the 2022 national election was largely concentrated in the Highlands Provinces with deaths and serious injuries under-reported through official channels. A woman was also killed in Port Moresby when police fired during crowd-control efforts at a polling station. Wilful destruction of ballot papers occurred in at least two provinces and there were allegations in some areas of fraudulently substituted ballot papers. In 2021-22, PNG has seen some tensions with respect to media criticism of the government. (See also ‘Media’).
DFAT assesses citizens of PNG are generally able to participate freely in the political process. However, the extent of this freedom varies considerably according to region and community practice.
Women face greater barriers to participation than men. Underlying violence can come to the fore during periods of heightened political activity, such as elections, particularly in the Highlands, and this can have a serious effect upon the ability of some groups to participate, particularly women, older people, and people with disability. Entrenched cultural practices of consensus-based decision making can be reflected in ‘bloc voting’ in Highlands Provinces of PNG, where a community collectively determines which candidate they will support, rather than casting individual ballots. Women are not always included in these community consultations.
Also, under the heading of ‘Police’ at 5.3 to 5.6 it is reported 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.
‘Internal Relocation’ at 5.15 and 5.16 where at 5.15 it is reported that:
Internal relocation for vulnerable groups in PNG may be possible – people can and do regularly migrate to cities, either in search of economic opportunities or to escape tribal and other violence or natural disasters. As much as 50 per cent of Port Moresby’s population is comprised of internal migrants residing in informal settlements. Those who relocate to Port Moresby and other major cities face very high unemployment – 80-90 per cent in the formal sector in Port Moresby – and very high levels of crime, including tribal fighting.
And ‘Prevalence of Fraud’ at 5.23 where it is reported 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.

The Australian Institute of International Affairs in their 14 March 2022 article titled ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’ reported in part that:
Tribal fighting remains ubiquitous in the Highland communities of PNG. As the pattern of violence worsens, the role of groups like the ICRC only becomes more essential.
Tribal fights are brutal. The aim is simple – to destroy the enemy, mentally and physically. Fights generally take place in or around remote villages without access to medical assistance or law enforcement. By taking over the enemy’s land, the occupying party is better positioned during future peace and compensation negotiations. Unfortunately, the civilians who do not participate in the fights are the ones who bear the brunt of the violence. Many are wounded or killed during these intense battles. The Highlands’ limited access to healthcare only adds to the anguish. Regrettably, at times sexual violence occurs during these fights. On top of immediate needs, the impact of violence remains even after the fighting has stopped — fleeing villagers are often displaced for months or even years…
Traditional limit in fights
Just like the Geneva Conventions, Highland communities have their own rules about what is permitted during a fight. The most consistent rule is the concept of neutrality — participants should not attack neutral people, places, buildings, or objects.
From a traditional perspective, there is broad agreement that killing ‘innocent’ people would lead to death or defeat in battle, either by incurring a generation of bad luck or becoming a target of the deceased’s spirit. Unfortunately, like in many situations of violence, in the heat of the fight these tacit rules are not always strictly followed, and communities have limited means of enforcing them.
A rule of similar importance is the principle that fighting can only take place on the lands of the clans involved in the fight. The ICRC has observed neutral clans marking their boundaries to prevent becoming involved. Rules and traditions of tribal fighting are primarily passed from father to son, or at clan meetings. However, many older community members feel that younger generations no longer respect these teachings.
Women are generally excluded from the tribe’s combat decisions. While this is not always the case, they are often expected to take small children and key possessions to the safety of relatives, or to hide until the fight is over.[1]
[1] ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’, Andrew Kobylinski, Australian Institute of International Affairs, 14 March 2022, Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea — AIIA - Australian Institute of International Affairs
In an article posted on 3 October 2017 by Eric Tlozek for the ABC News titled ‘Angry mob burns property linked to PNG’s prime Minister after election results’ it was reported that:
Police in the Papua New Guinea highlands say an angry mob has burned buildings and vehicles formerly owned by the country’s prime minister to express their anger about the outcome of recent elections…
Mendi’s acting police station commander Inspector Edward Aupong said the mob appeared to target a construction company and airline which had been owned by the Prime Minister…
PNG’s electoral commission only declared the result in the Southern Highlands on September 28, two months after an election marred by violence, interference and corruption allegations.
Inspector Aupong said the violence was a reaction to the declaration. “It may have been the political aftermath, when the declaration was made for the governor’s seat in the Southern Highlands” he said.
Will “When [incumbent Governor William] Powi will was declared, maybe the other candidates supporters may not have been too pleased with what happened, so they take it on themselves to do these unnecessary things.”
Inspector Aupong said two police officers were also killed in an ambush in the Highlands Highway on the weekend.
He said the mob also tried to release prisoners from the Mendi jail.
“The commander just told us that there was an attempt last night to release the prisoners”, he said…
Dozens of people, including other police, have died in the violence related to the 2017 national election.[2]
[2] >
The Tribunal has also considered the report of the Royal Papua New Guinea Constabulary on 14 July 2022 which was posted on their official facebook page and provides that:
Southern Highlands polling peaceful without major election related violence, says PPC Yangen
Polling in the Southern Highlands Province was peaceful without any major election related violence, says Provincial Police Commander Chief Inspector Daniel Yangen.
Mr Yangen said he did not receive any major incident reports such as what happened in the Enga province or in the 2017 national general election. He said people have demonstrated that they wanted a peaceful, free, fair, safe and corruption free election.
Mr Yangen said the candidates, supporters, and the general public cooperated and behaved well during polling and he expects the same for counting until the declaration of the winners.
The PPC said he was impressed when the people cooperated with electoral officials and security personnel to ensure the boxes were brought safely into Mendi Town for storage.
Mr Yangen said that boxes are now stored safely in containers at the Mendi Police Station for counting.
Request for information by the Tribunal – 26 June 2023
On 26 June 2023 the Tribunal wrote to the applicant’s solicitor requesting reports and/or other documents and/or information that supported the new claim that the applicant’s parents and one of his sisters had been murdered in Lae in July 2021 as had been outlined in the pre-hearing submission of 20 June 2023, see paragraph 23 above.
On 27 June 2023 prior to the commencement of the hearing and in response to the Tribunal’s query of 26 June 2023 (refer paragraph 28 above) the applicant provided to the Tribunal a purported letter from the Royal Papua New Guinea Constabulary from [Police Station 1], Morobe Province, dated [in] June 2023. This document was similar in letter head to the letter from [Senior Officer A] [Mr A], [position specified in] Southern Highlands that had earlier been provided to the Department in a post interview submission, see paragraph 18 above. However, both of these purported letters from the Royal Papua New Guinea Constabulary were different in appearance, format and letter head to the other two purported letters from the Royal Papua New Guinea Constabulary that had been provided to the Department in support of the applicant’s protection claims. In the letter of [June] 2023, it was reported that:
It was reported by relatives of the victims (deceased) that three people from Southern Highlands province have been killed in an election related violence in Lae, Morobe province [a day in] July 2021 between 3am to 4am. The mother and fathr were both killed while sleeping in their home at [location] while their young daughter was raped and then killed.
Reports from eyewitnesses stated that the family have been targeted numerous times and that night was unfortunate that the killing happened.
Furthermore, close relatives of the deceased said, the father was involved in the election and then migrated down to Lae for a better life after their home and properties destroyed back home in [Town 1]. They are worried about their family’s other siblings because the perpetrators will not stop until they’re satisfied…
Review hearing – 27 June 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a Protection visa afresh. After identifying the material and submissions that the applicant and his solicitor had provided to both the Department and the Tribunal it was confirmed by the applicant that he wished to rely upon all such material and that he maintained his claims for protection.
The applicant when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria explained that he understood the criteria as same had been explained to him by his solicitor.
The applicant told the Tribunal that he had first arrived in Australia in 2009 when he was around [age] years of age. He arrived on a student visa having enrolled in [a specified] degree at [University 1]. Between 2009 and 2017 he travelled between PNG and Australia on [number] occasions. He explained that on each occasion he travelled back to his home village in [Town 1] in the Southern Highlands to visit family around the Christmas period.
He told the Tribunal that after completing his undergraduate degree in Australia he had obtained permanent part-time employment in the field of [occupation 1] with [Employer 1].
He further explained that he resides in [a] Brisbane suburb with his partner, who he met in 2018 and that she is an Australian citizen who works in [a specified field]. He said that he and his partner have plans to marry and that in the event his application for a Protection visa is unsuccessful he would be applying for a Partner visa.
In reply to the Tribunal’s questioning, he explained that he had remained in Australia after his last arrival in 2017 and had applied for a Protection visa because if he returned to PNG, he believed he would be subject to really bad stuff from his tribal enemies who have people all over the country including in Port Moresby. He said that if he was to return, he believed they will cause him harm or do something bad to him.
He told the Tribunal that he and his tribal enemies both come from [Town 1] in the Southern Highlands, where his tribal group are known as [Tribe 1] but that their political and tribal enemies are [Tribe 2]. He further explained that his father had been [Position 1] for the regional Governor William Powi during the 2017 national elections. His father [assisted] the Governor’s campaign and [details deleted]. He said that at the time of the election campaign he was in Australia but was told by his family and saw many media stories that reported the political violence before and after the election result. He explained that the [Tribe 2] people supported the rival candidate Mr. Michael Nali who was unsuccessful in the election. He referred to the numerous media reports he had submitted to both the Department and the Tribunal which outlined the extensive election violence which included killings and the destruction [in] and around [Town 1] both during and after the election.
The applicant explained that during the election his father had been moved into [different accommodation] and placed under police protection due to the violence and that given his position he and his family were being targeted by the supporters of Mr. Nali. Whilst his father was under police guard his mother had run away in the bush when the family home had been attacked, and subsequently burnt down together with many other homes in [Town 1] who were known to be supporters of the Governor.
The applicant said that within a week after the election and in the aftermath of further politically motivated tribal violence, his father, mother and [other family members] relocated to Lae. He explained that he had little contact with his family after they had relocated to Lae and received family updates from his uncle, who had remained in regular contact with him while he was in Australia. He explained that he had been told by his uncle that his family had on several occasions gone into hiding in the bush when tribal enemies from [Tribe 2] had come to Lae looking for his father.
He explained that he had been told by his uncle, [Declarant F] that his parents and one of his siters had been murdered in Lae in July 2021 at their ‘[location]’ home which had also been burnt down. He was told that his sister had first been raped before being killed with his parents in this attack by his family’s tribal and political enemies who had travelled from [Town 1] to Lae to seek revenge ‘payback’ on his father and family.
In support of this claim the applicant referred the Tribunal to the purported letter from the Royal Papua New Guinea Constabulary dated [in] June 2023, which he had provided to the Tribunal on the morning of the hearing, refer paragraph 28 and 29 above.
In accordance with the procedure outlined in s 424AA of the Act the Tribunal drew to the applicant’s attention the different formats, appearance and letterhead of the four purported reports from the Royal Papua New Guinea Constabulary. In particular the applicant’s attention was drawn to the wording of the most recent report of [in] June 2023, in which his family were not identified by name and that the report appeared to be worded in a manner suggesting that the information had recently been provided to Police as opposed to the police having provided a report of the incident, the alleged murder of his parents and one of his sisters.
During this process and whilst the hearing was being conducted the Tribunal made several phone calls to the reported contact number on this purported correspondence from the Royal Papua New Guinea Constabulary. The Tribunal’s calls were not answered but did on one occasion appear to divert to another line which failed.
In reply to the Tribunal the applicant explained that the Police reports and letters that he had provided to both the Department and the Tribunal had all been provided to him by his uncle who had also sourced and provided the Statutory Declarations that he had also submitted and was relying upon, see paragraph 16 above. The applicant under questioning also confirmed that all of the deponents of these Statutory Declarations who spoke of the violence in [Town 1] during and after the 2017 elections, but for his uncle, did not speak English.
The applicant told the Tribunal that he did not know how these declarations had been obtained nor did he have any knowledge of how the police reports had been obtained as they had all been sent to him by his uncle after he had asked his uncle to help him with his application for protection in Australia.
The applicant however did assert that notwithstanding the uncertainty surrounding these declarations and reports that he was fearful of returning to PNG given the extensive politically motivated tribal violence in [Town 1] since the 2017 elections. He repeated his beliefs that his father had been targeted by their politically motivated tribal enemies who were aware of and of the view that he had advised and assisted his father in his duties as the Governor’s [Position 1] from Australia. Therefore, he believed that he was in danger of being killed or otherwise seriously harmed if he was to return to PNG.
The applicant further explained that although he had no other source of information as to the alleged murder of his parents and sister, he could only say that he has not been in contact with his family but for his uncle since this alleged incident and as such he was certain that his parents and his sister [Sister A] had been so murdered.
The applicant also explained to the Tribunal that he would not be able to relocate within PNG as he would be easily identified by his politically motivated tribal enemies, given he was known to them having regularly returned to [Town 1] many times prior to the 2017 election violence. He also said that given his distinct appearance and his disability ([details deleted]) he would be easily recognised throughout PNG by his family’s tribal enemies who often themselves travelled and relocated about PNG, especially through Lae and Port Moresby.
In response to discussions of the country information as outlined above at paragraphs 24 to 27 the applicant through his solicitor highlighted that:
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.
And that:
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.
In final submissions the applicant’s solicitor stated that the applicant faced a real chance of persecution through his actual and imputed political opinion because of his family’s support of the Governor throughout and since the 2017 elections. As such he (the applicant) faced serious harm as a result of his actual and imputed political opinion. Further given the mobile population in PNG, his distinctive appearance including [details deleted], and the 2021 murders of members of his family he could not safely relocate or rely upon the Royal Papua New Guinea Constabulary to protect him from this likely violence.
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 applicant claims to be citizen of PNG and provided a copy of his PNG passport, based on this material the Tribunal finds that the applicant is who he says he is, and a national of PNG. PNG is therefore the receiving country for the purpose of assessing the 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.[3] 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.[4] This is consistent with the established proposition that it is for the applicant to make his or her own case.[5]
[3] Section 5AAA of the Act.
[4] Ibid (with effect from 14 April 2015).
[5] 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.[6] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[7]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.
[6] Fox v Percy (2003) 214 CLR 118
[7] 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.[8] A similar approach is taken in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[10] which provides useful guidance for this Tribunal.
[8] SZLVZ v MIAC [2008] FCA 1816 at [25].
[9] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[10] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal is satisfied on the evidence before it that the applicant:
·Is originally from [Town 1] in the Southern Highlands District of PNG.
·That he was brought up by his father and mother in [Town 1] with his [specified family members].
·That he later lived and was educated to high school at [Town 2] and later Port Moresby.
·That he arrived in Australia initially in 2009 on a student visa and between 2009 and 2017 he completed tertiary [studies] at [University 1] and obtained and maintains employment with [Employer 1] in the [occupation 1] field.
·That while in Australia he returned to visit his family in PNG on [number] occasions.
·That his father was politically active in the Highlands and was [Position 1] for the regional Governor Mr. William Powi in the run up to and during the 2017 national elections.
·That his father was afforded police protection and [different] accommodation during the 2017 election during which his family’s home was attacked and burnt down by the tribal supporters of the Governor’s opponent Mr. Michael Nali, [Tribe 2].
·That during and following the 2017 elections there was serious violence including killings carried out by the tribal enemies of the Regional Governor and that the applicant’s family has been targeted for such violence in [Town 1], the highlands and throughout PNG.
·That the applicant’s family relocated to Lae from [Town 1] after the 2017 elections to escape the politically motivated tribal violence arising from the re-election of the Regional Governor which targeted the applicant’s father and his family because of his [assisting] the Governor being elected.
·That it was commonly known amongst his family’s tribal enemies and supporters of the Regional Governor’s opponent that the applicant had supported and likely advised his father from Australia in the run up to and during the 2017 election.
·That the applicant has not been in contact or has received any correspondence or other communications from his father, his mother and/or his sister [Sister A], since around July 2021 when he understands they were still residing in Lae.
·That his uncle, [Declarant F] has informed the applicant that his parents and sister, [Sister A], were murdered at their home in Lae in July 2021, in which his sister was also raped prior to her murder.
·That his uncle [Declarant F] has supported the applicant’s application for protection in Australia and has sourced and provided to the applicant a series of Statutory Declarations prepared in English and sworn in Lae (by family and friends from the highlands who do not speak or understand English) and several purported police reports attesting to the violence in [Town 1], the risk of harm to the applicant, and the murder of his parents and sister in Lae.
·That the applicant is easily identified throughout in PNG due to his tribal appearance, accent and his disability [details deleted].
Statutory declarations and purported police reports
As to the Statutory declarations relied upon by the applicant and identified above at paragraph 16. These declarations are purported to have been made by relatives and friends from [Town 1] and the Southern Highlands and address the 2017 election violence in [Town 1] and the subsequent alleged risk of harm that the applicant faces if he was to return to PNG. As identified during the hearing many of the declarations contain similar wording and are all in English and sworn on similar dates in Lae. Under questioning in relation to each of the declarations the applicant identified his relationship with the deponents and further explained that the deponents but for his uncle [Declarant F] did not speak, or write English, and only had a very basic understanding, if any, of the English language, refer paragraphs 44 and 45 above.
In that regard the applicant was unable to provide any information to the Tribunal as to how these declarations were taken and with what if any assistance was provided to the deponents so as they could provide, review and swear such declarations in English. The applicant was only able to say that when he requested his uncle’s assistance with his application that he later received these declarations that had been purportedly obtained by his uncle.
Given these declarations only address the 2017 election violence which has been accepted by the Tribunal, on the basis of the extensive country and media reports as to this violence, they do not provide any further assistance to the Tribunal. However, given the unknown history of these documents as to how they were obtained the Tribunal also gives no weight to them in its consideration of the applicant’s claims for protection.
In relation to the purported reports and letters from the Royal Papua New Guinea Constabulary which the applicant has provided and seeks to rely upon in this Review, refer paragraphs 18, 27 and 29 above. The Tribunal during the hearing drew to the attention of the applicant the different letterhead, formatting and that some of these documents seemed to refer to the applicant’s personal circumstances in a manner that was not consistent with a police report as to the issues of violence in [Town 1] and the risk of harm faced by the applicant, refer paragraphs 42 to 44 above. Under questioning the applicant conceded that the documents were not all of a similar letterhead and/or format and that they had all been provided to him by his uncle for his application for the visa and the review of the Department’s refusal to grant the visa.
Given that the during the hearing attempts were made to telephone the Royal Papua New Guinea Constabulary through the telephone numbers listed on some of the purported police reports. And noting that these calls were not answered, refer to paragraph 43 above. And given the country information as to the prevalence of fraud, refer paragraph 24 above, the Tribunal has given no weight to these purported police reports in this review.
Actual and/or imputed political opinion
The Tribunal is satisfied on the evidence before it that the applicant although not having been present at [Town 1] during the 2017 election violence has a profile of being a supporter of the Regional Governor through his father’s role as the Governor’s [Position 1]. It is also accepted by the Tribunal that this profile incudes a belief on the part of the Governor’s opponents and their tribal supporters [Tribe 2], that the applicant as an educated man provided advice and assistance to his father during and since the 2017 elections.
Given the country information as outlined above at paragraph 24, as to ‘Inter-group violence’ and ‘Political opinion’ and notwithstanding the passage of time since the 2017 elections together with the applicant’s parents and one of his siters having not been in contact with him since 2021. The Tribunal is satisfied that if the applicant was to return to [Town 1] or the Southern Highlands of PNG in the reasonably foreseeable future that he would face a real chance of persecution involving serious harm on account of his political and/or imputed political opinion.
The applicant’s fears in this regard are well-founded.
Relocation and state protection
The Tribunal having considered the relevant country information at paragraph 24 above as to ‘Inter- Group Violence’ which provides that: “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”; together with the applicant’s political profile and that of his father’s which has been imputed to him and his disability which makes him easily identifiable is satisfied that the applicant cannot relocate within PNG and safely avoid persecution. In that regard the Tribunal notes that the country information under the heading of ‘Internal relocation’ provides that: “as much as 50 per cent of Port Moresby’s population is comprised of internal migrants residing in informal settlements”. Given the large migration of highland residents throughout PNG the tribunal is not satisfied that the applicant could avoid being identified and then being targeted for politically motivated tribal violence by relocating within PNG.
As to the applicant being able to obtain protection from the PNG authorities the Tribunal notes the country information as outlined above at paragraph 24 where under the heading of ‘Police’ it is reported that: “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”. As such the Tribunal is not satisfied that the applicant could rely upon the PNG authorities to provide protection to him so as he can avoid being persecuted and seriously harmed for his actual and/or imputed political opinion through politically motivated tribal violence throughout PNG.
Refugee criterion
The Tribunal, having considered all of the applicant’s claims both individually and cumulatively, does accept that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of his actual and/or imputed political opinion in all areas of his receiving country, PNG: s 5J(1)(c). The Tribunal finds on the evidence before it that the applicant in this regard cannot rely upon the PNG police and/or other PNG authorities to provide protection to him and as such there are not effective protection measures available to the applicant from the PNG authorities: s 5J(2).
Therefore, the Tribunal finds that the applicants’ fears of persecution arising from actual and/or imputed political opinion are well-founded as required by s 5J of the Act, and therefore, the applicant is refugee within the definition of s 5H of the Act.
Having found that the applicant is a refugee the Tribunal has also considered whether the applicant has a right to enter and reside in another country other than Australia. The Tribunal finds that the applicant does not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies
s 36(2)(a) of the Migration Act.
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 3202

3 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Remedies