1916210 (Refugee)

1916210 (Refugee) [2024] AATA 4368 (5 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Duy San
CASE NUMBER:  1916210
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Carolyn Wilson
DATE:5 September 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 September 2024 at 12:27pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – fear of harm from ex-boyfriend’s wife – relationship with married man – threatening texts but no approach or harm – relationship ceased and no recent contact – claim of continuing interest from ex-boyfriend – ex-boyfriend’s other affairs – value of service work in remote community – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 23 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Papua New Guinea (PNG), applied for the visa on 22 December 2017. The delegate refused to grant the visa on the basis that there were no credible threats of harm to the applicant from her ex-boyfriend’s wife.
The applicant appeared before the Tribunal on 2 August and 3 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend [Ms A] from PNG.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to be a citizen of PNG and provided her passport as evidence of this. I accept the applicant is a citizen of PNG and find PNG is her receiving country.
The applicant is a single woman from [Town]. She first came to Australia in October 2016 for a three month visit, returning to PNG in January 2017. She returned again to Australia in May 2017 and in December 2017 applied for a Protection visa.
In her protection visa application she said she had completed high school and worked in a shop in [Town]. She was separated from her partner from a relationship that commenced on 24 August 2016 and ended 28 April 2017. She made the following claims:
I left PNG because it is not safe for me to live there. I have been wanted by a woman and her group of men from her village claiming that I stole her husband.
If I return they will find me and punish me to please their anger or even kill me…
I cannot return for the fear of my life because the woman told her people to look for me if I return to PNG.
The applicant was interviewed by the delegate in May 2019. As recorded in the delegate’s decision, she told the delegate she commenced a relationship with a man called [Mr B] in 2015. [Mr B] worked as [an occupation]. He would pick her up after work and they would go to hotels together. She did not know he was married because he did not disclose this to her. She did not tell her parents about [Mr B]. When she returned to [Town] from Australia in January 2017 she received a threatening text message from a woman saying she was [Mr B]’s wife. The wife had seen messages between the applicant and [Mr B]. She received a few threatening texts from the wife but was never approached by her in person.
In July 2024, prior to the first hearing, the applicant provided submissions with attachments. They repeated the claims made before the delegate, and included the claim that she had a well-founded fear of persecution for reason of her membership fo the particular social group ‘persons who have had a relationship with a married person who is not their spouse’. A large bundle of support letters were provided, all of which are relevant only to a request for Ministerial intervention. No further documentary evidence or witness statements were included in the pre-hearing submissions.
First hearing
The applicant said she met [Mr B] through her cousin [Ms C], who was married to [Mr B]’s brother. [Ms C] set them up, but did not tell her [Mr B] was married. She does not know if [Ms C] knew whether [Mr B] was married or not. She cannot remember when they met but thinks it was in 2015. When the dates from her visa application were put to her, that is a relationship commencing in August 2016, she said no she was with [Mr B] for a year before coming to Australia in October 2016. She said they would meet on weekends and sometimes stay overnight at hotels. They only ever met up alone, they did not meet each other’s families or socialise with friends. She was keeping the relationship secret from her parents because they might have wanted to arrange a marriage for her.
The applicant said when she returned to PNG in January 2017 she received a threatening text from [Mr B]’s wife. She was scared for her life and stopped going to work. Until that point she did not know he was married. She was angry with [Mr B] and would not answer his calls. She never saw him again in person. That is, she has not seen him since she left for Australia the first time in October 2016. She de-activated her [Social media] account so he could not message her that way. He never came to her house to look for her. He never came to her work, or if he did she had already left her job. Even though she put in her visa application that she worked at the shop until April 2016 she claims in fact she stopped working when she received the threatening message in January and just stayed at home until she left PNG in May.
The applicant says she knows [Mr B] is still interested in her because he still asks her friends about her. When asked to clarify which friends she said it was just one friend who has told her this, a woman called [Ms A]. She said [Ms A] also told her [Mr B]’s relationship is in trouble because he cheats a lot on his wife. I asked if she had evidence of this, such as text messages from [Ms A], and she said no [Ms A] just tells her this personally and not in messages.
Following the hearing the applicant provided a letter from her friend [Ms A] dated 7 August 2024. [Ms A] states that she did not know the applicant in PNG but got her number from her sister in [City]. [Ms A]’s bother is married to [Mr B]’s sister and when [Mr B] heard [Ms A] was coming to Australia he asked her to make contact with the applicant. She spoke to the applicant who told her about their relationship but said she had moved on and did not want her to give her number to [Mr B]. [Ms A] states that: ‘every time [Mr B] sees me [he] will ask if [the applicant] had call me… To this day he keeps on asking me for [the applicant’s] contact details’. No dates of when she came to Australia or when she sees [Mr B] were included in the letter. I invited the applicant to make [Ms A] available to give oral evidence at a second hearing.
Second hearing
At the second hearing the applicant said she has never met [Ms A] in person but they have spoken over the phone. [Ms A] first contacted her in April this year when [Ms A] was in Australia. [Ms A] got her telephone number from [Ms D], [Ms A]’s sister. The applicant met [Ms D] when she lived in Queensland. She spoke to [Ms A] twice during her holiday to Australia, and since then she is becoming a friend and they message or call frequently.
[Ms A] said she lives in [Town] and works as [an occupation]. She did not know the applicant in PNG and has never met her in person. She got the applicant’s phone number from her sister [Ms D], who lives in Queensland, when she came to Australia in March 2024. She has also visited Australia in 2016 and 2019. She says her brother is married to [Mr B]’s sister so she sees him when he is visiting their family. She last saw him in late April 2024 after she returned to PNG from Australia.
[Ms A] said [Mr B] married his wife about 8 years ago, and has [children] aged [Ages]. They are now separated due to marital problems, in particular, that [Mr B] was unfaithful to his wife with many women. His wife found he had numbers for other women on his phone. [Ms A] does not know when the couple separated. She used to see them together when they visited her family, but did not see the wife with him when she last saw [Mr B] this year. She said his wife is a violent woman who likes to fight. When asked if there were any police reports against the wife or reports that she had killed or seriously injured anyone she said no, she has not heard of the wife killing anyone or having them killed. But she did hear an account that the wife had bound another woman which left scarring. She does not know this as [an occupation], but just heard a story. She thinks this happened in about 2022. She said [Mr B] and his wife live separately now. She knows [Mr B] still lives in [Town] but she’s not sure where his wife lives. She does not know if either of them has a new partner.
[Ms A] said [Mr B] heard she was coming to Australia this year and asked her if she would find out where the applicant was. After contacting the applicant in Australia [Ms A] told [Mr B] she was in Australia but would not give him her phone number. She said he asked her in April, May, and again in June for the phone number. In April he asked her this in person, but in May and June he asked her over the phone. She has not given him the applicant’s number.
The applicant said although [Ms A] gave evidence [Mr B] was separated from his wife, she does not believe it is a formal separation. She thinks that because they are still connected through having children they will go through cycles of reconciliation and separation for the foreseeable future. She has no personal knowledge of their situation but this is the way relationships work in PNG. Even if they have separated, and even if there are other women he has been seeing since 2016, she fears [Mr B]’s wife will still want to harm her because she will believe the applicant has retuned to PNG to continue the relationship with her husband. The applicant confirmed she has no interest in pursuing a relationship with [Mr B], even if he is separated. She believes his wife likes to fight other women, but the applicant is not a fighter.
Consideration of claims
The applicant has consistently claimed she had a relationship with a married man in PNG and that she fears harm from his wife because of this. Having considered her claims and evidence I consider it is plausible she had a relationship in PNG with a person called [Mr B].
In her visa application the applicant put specific dates for the period in which she was in a relationship with [Mr B]. That is, from 24 August 2016 to 28 April 2017. She could not explain at the hearing why she put those dates in, and denied they were accurate. She said it must be a ‘typo’, however the application was handwritten. She claimed the relationship lasted for about a year prior to her trip to Australia. She also claims she did not know [Mr B] was married, and that during their relationship she never met any of his friends or family and he never met any of hers. I consider it is implausible she could have been in a relationship for a year and not know her partner was married or living with someone else, or that they could have carried on a relationship for so long without other people being aware of it. The claims that they met at hotels on weekends, never socialised with family or friends, no-one knew of their relationship, and that she did not know he was married, are more consistent with a short relationship than one that lasted for a year. I consider a relationship commencing in August 2016, just a few months before she left to travel to Australia, is more likely.
The applicant says she fears [Mr B]’s wife will try to hurt or even kill her if she returns. She fears the wife will target her because of the relationship in the past but also because the wife will think the applicant has returned to PNG to recommence the relationship or will see [Mr B] messaging her again.
In support of her claims to have been threatened by [Mr B]’s wife, the applicant provided a letter dated 20 December 2017, purportedly from a senior constable at the [Town] police. The letter says
She approached the [Town] Police Station and lodged an official complaint that she did have a marital affair with a married man. However during their relations the spouse of her friend found out about their affairs and threatened to murder her several times. The spouse also did arrange for other men to murder her.
The applicant says she did not go to the police in [Town]. It was her father who went to the police in December 2017, which was 6 months after she left PNG and 11 months after the alleged threats. She asked him to do this to get evidence for her visa application. As far as she knows the police did not take any action on the complaint, the senior constable merely wrote the letter for her father. The fact that the letter erroneously states the applicant herself was attending the police station suggests the letter is not a formal police report but rather a letter done as a favour or by request. The letter is not evidence that the applicant sought help from the police, as she admits she did not. Nor does the letter provide evidence of actual threats as it merely repeats what the applicant’s father told the police to put in the letter. As the letter was created to support her Protection visa claims I give it little weight.
The applicant says she has not seen [Mr B] since she left PNG the first time in October 2016. She says that when she returned in January 2017 and received a threatening message from a woman saying she was his wife she immediately cut off contact with [Mr B]. He tried calling her a few times but she did not answer his calls. She claims he is still interested in pursuing her, and bases this on what [Ms A] told her in April this year. The applicant herself has had no contact with him for nearly 8 years. There is no evidence he ever contacted her parents, or her cousin [Ms C] who set them up and who is married to [Mr B]’s brother, or that he tried to contact her through any other means in all these years. Yet she and [Ms A] claim this year he asked [Ms A] to look her up when she was in Australia, and get her phone number for him. If this occurred, [Ms A] did not give him the number and has let him know the applicant is not interested in reconnecting. There is no evidence from [Mr B] himself, so it is not known what his intention was in asking [Ms A] for this information, if this happened at all. However given the many years of no contact, and no effort to see her in person in the period between January and April 2017, I am not persuaded [Mr B] has an interest or intention to pursue the applicant should she return to PNG. In any event, the applicant was clear she has not interest in reconnecting with him. Given he did not try to see her in 2017 I do not accept he would force such contact in the foreseeable future if she is not interested, such as to raise concern on his wife’s part that the relationship has resumed.
The applicant does not know [Mr B]’s wife, and does not even know her name. She says [Mr B]’s wife likes to fight other women, but she has no knowledge of her to base this claim on. Her only information about her was the alleged threatening message she received from a person claiming to be [Mr B]’s wife, and her knowledge of how some women behave in PNG. She says women in PNG can be violent and will fight for their man if other women are involved. She fears [Mr B]’s wife will think that by returning to PNG the applicant has come back to resume the relationship from 2016. This is mere speculation. I do not accept [Mr B]’s wife would even know the applicant had returned, or that she would have interest in her after all this time, including in circumstances where [Mr B] and his wife have separated allegedly due to his more recent extra-marital relationships.
The applicant’s witness [Ms A] says she knows [Mr B]’s wife, but has not seen her for a while and not since [Mr B] and the wife separated. She could not say when she last saw her, but that she has not seen her this year. [Ms A] works with the [Town] police and confirms there are no reports to the police of violence or murder committed by [Mr B]’s wife. She heard [Mr B]’s wife bound a woman and left her with scarring, and she thinks this was around 2022. However she has no formal or firsthand knowledge of this, and her evidence on this incident was vague and lacking in detail.

The applicant says she was threatened in January 2017 by [Mr B]’s wife that she would kill her or get men to kill her. Fortunately the applicant was never approached or harmed in any way in the period between being threatened in January and leaving PNG in May. She says this was because she stopped working, although she also admitted the wife did not know where she worked. The applicant continued living at home and could have been located if there was a genuine interest in confronting or harming her. If threats were made I consider they were hyperbole when the wife found out about the relationship, rather than credible threats of a real intention to hurt her, given no actual approaches were made to the applicant. [Ms A] gave evidence that [Mr B] has been unfaithful to his wife with many other women since the applicant and this is the reason [Mr B] and his wife separated. I do not accept the wife would target the applicant now or in the reasonably foreseeable future for a short relationship from 8 years ago, when there have been others since.
Having considered the applicant’s claims and evidence, I do not accept [Mr B]’s wife has an ongoing adverse interest in the applicant. I also do not accept [Mr B] has an ongoing interest in pursuing a relationship with the applicant. I consider the chance of [Mr B]’s wife inflicting harm on the applicant now, 8 years later, is farfetched and too remote to amount to a real chance. I find the applicant does not face a real chance of harm from [Mr B]’s wife or anyone associated with her. I find the applicant does not have a well-founded fear of persecution for reason of this past relationship or membership of a particular social group ‘persons who have had a relationship with a married person who is not their spouse’.
I have also considered whether there is a real risk the applicant will suffer significant harm arising from her past relationship in PNG. ‘Real chance’ and ‘real risk’ has been found to equate to the same threshold. For the same reasons given above, I find the applicant does not face a real risk of significant harm from [Mr B]’s wife or anyone associated with her. I find there are not substantial reasons for believing the applicant will suffer a real risk of significant harm if she returns to PNG.
Referral to the Minister
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The applicant submits it is in the public interest that she be permitted to remain in Australia because of her work in a remote [community] as [an occupation] . She has lived and worked in this community near [Location] since 2020. She provided a large number of support letters from her employer, local community leaders, and a local Member of Parliament. The letters spoke of her value to her employer and the community, and the difficulty in finding qualified staff to live and work in remote locations. Some of the letters raise concerns of serious harm and hardship to local residents in this remote location without the applicant’s ongoing employment and support.
I have considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department for consideration.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Carolyn Wilson
Member

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

[2024] AATA 4368

5 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction