1916930 (Refugee) - [2023] AATA 3925

1916930 (Refugee) [2023] AATA 3925 (3 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Anthony Stolar
CASE NUMBER:  1916930
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:3 August 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 August 2023 at 11:14am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – family member of persons killed in tribal violence – diagnosed, suffering from and being treated for a mental disease – inter-tribal fighting – attitudes and access to mental health support – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 411, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v 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
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZOGP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 704
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 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 3 November 2017. 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 27 June 2019. The applicant provided a copy of the delegate’s decision with their 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 1 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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
According to the protection visa application, the applicant claims to be citizen of PNG and provided a copy of his PNG passport, PNG birth certificate and his PNG driver’s license, 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.
Issues
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.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection which includes (but is not limited to) the following documents which have been considered by the Tribunal:
·the applicant’s protection visa application form and the accompanying identification documents;
·copies of 6 photographs, 4 of which depict the same two apparently deceased male persons and two of which depict apparent fire damage to some buildings;
·three apparent PNG media articles reporting on tribal violence in [location] in the [Province 1] of PNG;
·statutory declaration (hand-written) under the hand of [Mr B], [Village 1] Village Councillor dated 18 October 2017;
·letter of support for the applicant, [Mr C] and [Ms D] under the hand [Ms E] (applicant’s sister), [Manager of Business 1] dated 16 October 2017;
·letter confirming past employment of the applicant and [Mr C] as part-time [Occupation 1] under the hand [Ms E] (applicant’s sister), [Manager of Business 1] dated 29 November 2017;
·purported police report under the hand of Senior ‘Sargent’ [name], [Staff Officer], [Province 1], dated 14 December 2017 with a coloured emblem and addressed to ‘To Whom it may Concern’;
·purported letter from the Provincial Governor of [Province 1], [name], dated 4 December 2017;
·purported letter from Pastor [F] of [Church 1], dated 6 December 2017;
·applicant’s application for review and attached protection visa decision record of 11 June 2019;
·letter under the hand of [Dr G], Consultant Psychiatrist of [Mental Health Service 1], Queensland Health, dated 9 February 2023. In this letter [Dr G] reports that the applicant has been diagnosed and was receiving outpatient treatment for [Medical Condition 1], and Post-Traumatic Stress Disorder, with symptoms that included flashbacks, avoidance of trauma-related triggers, inability to recall features of the trauma and fear responses such as hypervigilance. [Dr G] also reported that the applicant had been admitted to [Hospital 1 AMHU] in August 2022 from 17/08/2022 until 24/08/2022;
·letter under the hand of [Dr G], Consultant Psychiatrist of [Mental Health Service 1], Queensland Health, dated 30 March 2023 in which he confirms his earlier diagnosis of the applicant and reports that the applicant has demonstrated worsening cognitive symptoms including confusion, short-term memory impairment and impaired verbal comprehension. [Dr G] also reported that the applicant is also demonstrating long-term memory impairment as it has come to light that his recollection of traumatic events in PNG appear distorted. [Dr G] also stated that the applicant was not fit to attend a Tribunal hearing.;
·letter under the hand of [Dr G], Consultant Psychiatrist of [Mental Health Service 1], Queensland Health, dated 29 May 2023 in which he again confirms his earlier diagnosis of the applicant and reports that the applicant was still not fit to attend a Tribunal hearing;
·letter under the hand of [Dr H], Staff Specialist of Psychiatry of [Mental Health Service 1], Queensland Health, dated 19 July 2023 in which it is reported that the applicant’s condition had worsened and that he continues to suffer from stress and anxiety, depression, compulsive checking, and cognitive symptoms. [Dr H] also reported that the applicant was unfit to attend a Tribunal hearing;
·statutory declaration under the hand of [Ms D] (applicant’s mother) dated 9 March 2023;
·statutory declaration (type-written) under the hand of [Mr B], [Village 1] Village Councillor dated 9 March 2023;
·written submissions of the applicant’s solicitor dated 31 July 2023 and the attached statutory declaration of the applicant’s mother of 9 March 2023 (see above), the statutory declaration of [Mr B] of 9 March 2023 (see above), the medical reports of [Dr G] and [Dr H] (see above) and a copy of the US Department of State’s Country Report on Human Rights Practices: Papua New Guinea;
·statutory declaration with attached typed statement under the hand of the applicant dated 31 July 2023 (presented at the Review Hearing); and
·copy of the applicant’s hospital discharge summary from [Hospital 2], PNG dated 9 February 2015 (presented at the Review Hearing).
Claims for protection
The applicant in his application for the visa made the following claims for protection (in summary) that:
·that following the general elections in PNG his home village was attacked by rival clans because his village did not support their candidate who subsequently lost the election;
·that his family home was burned down in the attack upon his village when two of his uncles were killed while he managed to escape;
·he fears further harm from these rival clans if he was to return to PNG as these clan members have killed his uncles and burnt down his house;
·that since travelling to Australia his sister has been attacked by their tribal enemies in Port Moresby.
Department interview
The applicant was interviewed by the Department on 14 February 2019.
Delegate’s decision
The delegate’s decision of 11 June 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that there was an ongoing prevalence of inter-tribal fighting in PNG. However, the delegate was not satisfied that the applicant had been targeted because of his tribal affiliations in the past and was not satisfied that the applicant faces any such targeting in the reasonably foreseeable future. Therefore, 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 20 January 2023 the Tribunal invited the applicant through their then nominated representative to attend a review hearing at the Brisbane Registry on 23 March 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.
On 23 January 2023 the applicant replied to the Tribunal via an email in which he requested an extension of the hearing date stating that:
…I am asking for that date to please be extended as after I had received your email I contacted my migration agent Bruce Wells who informed us that he no longer practices and is no longer in that particular field, I asked if my file was passed on to someone else to which we were told no. I requested Bruce please send all my files forward to me as now I need to find a new migration representative to represent my case. You asked in the letter to update you within 7 days of my new representative but I’m yet to find one. I have sent enquiry to other migration agencies but as it was a weekend I’m still waiting for a response. I’m doing my best to find a new representative agent as I was not aware mine no longer worked in the industry. Please may I ask that you take this into consideration as I can’t represent myself, especially with my current health conditions and situation.
On 25 January the applicant’s partner, [Ms A] wrote to the Tribunal in an email in which she repeated the applicant’s circumstances adding that they had not yet received the applicant’s file from his former representative and that:
…Unfortunately due to [the applicant’s] current health and state of mind he cannot represent himself. He was diagnosed in August 2022 with [Medical Condition 1] and PTSD. He is currently on medication and is a out-patient with [Hospital 1] were we attend regular appointments, monitoring and medication as well as regular visits with his GP and Naturopath. He physically and mentally doesn’t have the capacity to accurately represent himself at the current moment…
In response to this email the Tribunal notified the applicant on 7 February 2023 that his application for the postponement of his Review Hearing had been refused by the Presiding Senior Member on the grounds of the lack of supporting documents as to medical claims and that there was in the view of the Tribunal sufficient time to engage and instruct a new representative for the hearing.
The Tribunal subsequently received notification on 13 February 2023 that Mr. Tony Stolar of Coongie Pty Ltd (Division of Stolar Law Pty Ltd) that he had been appointed the applicant’s new representative and authorised recipient. On this date the applicant’s new representative/solicitor wrote to the Tribunal requesting a postponment of the applicant’s listed Review Hearing of 16 March 2023 due to the applicant’s fitness to attend the hearing. In part it was stated that:
During our conference, it was apparent that [the applicant] was barely able to hold a conversation, but we obtained some information about the matter from his partner, [Ms A]. Given the current state of [the applicant’s] health, we respectfully request that the Member allow an adjournment for a minimum of three months so there is an improvement in [the applicant’s] health.
In support of our client please see attached:
1. Psychiatrist’s letter (9 February 2023) detailing [the applicant’s] current mental conditions.
On 17 February 2023 in response to the applicant’s request for a postponement of his Review Hearing scheduled for 23 March 2023, the Tribunal postponed the applicant’s hearing to 23 May 2023 and requested an update as to the applicant’s fitness to attend such a hearing from his treating psychiatrist by 31 March 2023.
The applicant’s solicitor on 31 March 2023 provided the Tribunal with a further letter under the hand of [Dr G], Consultant Psychiatrist of [Mental Health Service 1], Queensland Health, dated 30 March 2023.
On 3 April 2023 the applicant’s solicitor provided to the Tribunal a further copy of the [Dr G]’s report of 30 March 2023: see above at paragraph 26, and a completed ‘hearing response form’ requesting a Pidgin interpreter and indicating that [Dr G] would be a witness at the applicant’s forthcoming Review Hearing.
The Tribunal then wrote to the applicant’s solicitor on 17 April 2023 indicating that the Tribunal had agreed to a further postponement of the applicant’s review hearing to a date to be notified, and further requested a further update from [Dr G] as to applicant’s fitness to attend a Review Hearing in the future.
On 30 May 2023 the applicant’s solicitor wrote to the Tribunal repeating their earlier request for a postponement of the applicant’s Review Hearing and they provided an updated report under the hand of [Dr G], Consultant Psychiatrist of [Mental Health Service 1], Queensland Health, dated 29 May 2023; in which [Dr G] reported that the applicant was presently unfit to attend a Review Hearing before the Tribunal.

The Tribunal then invited the applicant through their solicitor (Mr Anthony Stolar of Stolar Law) on 3 July 2023 to attend a Review Hearing at the Brisbane Registry on 1 August 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 solicitor on 20 July 2023 requested a further postponement of the applicant’s Review Hearing of 1 August 2023 due to the applicant still being unfit to attend a Review Hearing before the Tribunal. Attached to this application was un-updated letter/report from the applicant’s treating psychiatrist (dated 29 Mary 2023) and a further letter /report under the hand of [Dr H], Staff Specialist of Psychiatry in which it was reported that the applicant was still unfit to attend before the Tribunal at a Review Hearing.
After considering the decision of SZOGP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 704 in which Smith FM stated at [6] to [8] that:
the present case does not require me to explore the uncertain boundaries of ‘unfitness’ to participate in hearing and ‘subversion’ of procedures required by s.425 of the Migration Act 1958 (Cth). Nor does it raise issues concerning the Tribunal’s investigation or assessment of claims of unfitness in the present case. It does, however, raise issues which were not addressed in SCAR or SZNVW, arising from the conclusion of the present Tribunal that the applicant’s wife “is unable to properly give oral evidence to the Tribunal at a hearing” and that “this situation is likely to continue for the foreseeable future”. Neither party challenge these findings being incorrect in fact, nor that they were not open on the evidence which was before the Tribunal.
The first issue is whether, upon the Tribunal’s findings, Part 7 of the Migration Act gave the Tribunal power to complete its review, rather than indefinitely postponing its decision to see whether the applicant’s condition might improve enough for her to give oral evidence to the Tribunal. The second issue concerns the fairness of the procedures followed by the Tribunal, when deciding to proceed to make a decision in the absence of evidence being taken from the applicant at a hearing. In particular, the applicants argue that the Tribunal failed sufficiently to warn the applicant that this might be the consequence of her tendering evidence of chronic unfitness to attend a hearing.
I have concluded that the Tribunal sufficiently complied with its obligation to invite the applicant wife to a hearing, and that it had power to proceed to make a decision without appointing a reschedule hearing, once it was satisfied that she would be unfit to attend for the foreseeable future. I have also concluded that its exercise of discretion to proceed in this matter was not vitiated by any jurisdictional error. I am not persuaded that the applicants are entitled to relief under s. 476 of the Migration Act.
The Tribunal formed the view that firstly, the applicant’s medical condition and his unfitness to attend a Review Hearing in the foreseeable future would be unchanged, and, secondly, that the Tribunal should not further postpone the applicant’s Review Hearing and proceed to a Review Hearing without the applicant necessarily giving oral evidence.
In that regard, and as a result of the Tribunal’s decision to proceed with the applicant’s scheduled Review Hearing on 1 August 2023, the Tribunal wrote to the applicant’s solicitor on 25 July 2023 informing them of the Tribunal’s decision not to further postpone the applicant’s Review Hearing.
On 27 July 2023 the applicant’s solicitor wrote to the Tribunal indicating that he had been unable to take final instructions from the applicant but that he would be providing written submissions to the Tribunal on behalf of the applicant, and would be in attendance with the applicant’s partner and witness, at the hearing, at which they indicated the applicant would not be giving oral evidence.
Review hearing – 25 July 2023
The applicant appeared with his solicitor, and his partner and witness [Ms A].
The Tribunal hearing was conducted at the Brisbane Registry in the Pidgin (PNG) and English languages at the request of the applicant. The applicant throughout the hearing consistently replied to the Tribunal’s questions in English.
The applicant at the commencement of the hearing handed up a Statutory Declaration under his hand dated 31 July 2023 with an annexed typed statement outlining his history in PNG and his evidence in support of his claims. In discussions with the applicant’s solicitor as to the applicant’s medical condition and fitness to give oral evidence the Tribunal agreed to proceed by admitting the applicant’s annexed statement as his evidence, and then would proceed to question the applicant through short simple questions as to any issues arising from his typed evidence and earlier claims.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. 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 it had been explained to him by his solicitor. However, given the applicant’s present medical condition (as reported in the medical reports) the Tribunal provided a short explanation of the refugee and complimentary protection criteria to the applicant through the interpreter. After listening to this explanation, the applicant told the Tribunal in English that he understood the criteria.
In reply to the Tribunal’s questions as to his experiences with Tribal violence he told the Tribunal that his village of [Village 1] was attacked by political enemies from another tribe in 2012 as he had claimed in his application and had described in his statement of 31July 2023. He said that he had witnessed his uncles being shot in front of their home where he and his brother resided. He said that he was within a couple of metres of his uncles when they were shot by enemies carrying rifles and that he was so close that he was splattered with his uncle’s blood across his face. He said that he had run away into the bush with his brother [Mr C] but that they had gone in separate directions. He said that while he was running away, he heard further gun shots and saw houses in his village being burnt down.
Under questioning he agreed that when his uncles were shot, the men who shot them did not then try to shoot him or point their rifles at him. However, he told the Tribunal that when he ran into the nearby bush, he had heard further shooting. He said that he had thought that his tribal enemies may have also then shot at him. In reply to further questioning, he indicated that he was actually unsure as to whether he had or had not been shot at when he ran into the bush as he was very scared and traumatised after seeing his uncles being shot dead in front of him.
He told the Tribunal that after running into the bush and being separated from his brother that he had then waived down a car on a nearby highway and got a lift to [Town 1] where his mother lived. He said that as he was worried about being followed by his tribal enemies, he decided not to seek refuge with his mother but rather with his Auntie. He said he stayed overnight during which time his sister in Port Moresby had organised air travel for him, and he was able to depart [Town 1] the next day for Port Moresby where he then stayed with his sister.
In reply to the Tribunal’s questions as to what he had then done in Port Moresby he explained that as stated in his application he had got some part time work as a [Occupation 2] and later together with his brother he had obtained some part time [Occupation 1] work for his sister’s business, [Business 1].
Under further questioning the applicant agreed that he had never seen or recognised any tribal enemies in the five-year period that he had lived in Port Moresby after fleeing [Village 1] via [Town 1]. He also agreed that he had never during that period been subject to any tribal violence and/or threats of violence from his uncle’s tribal enemies. Although he said that he was afraid of them and believed that as many tribal people from the highlands came to Port Moresby, he feared that he would if he retuned to PNG be confronted by some of them and that he would be harmed by them.
He also told the Tribunal that while he had been living in Port Moresby, he had been stabbed in the stomach near his local bus stop by a person, and that he had needed treatment at [Hospital 2] (a copy of the applicant’s ‘Discharge Summary” dated 9 February 2015 was provided to the Tribunal during the hearing). Under questioning the applicant agreed that he did not recognise his assailant as a tribal enemy of his uncles or himself, and that they had not made any threats or comments to him that indicated that they were a tribal enemy or had been motivated to stab him over any tribal dispute or war. The applicant further agreed with the Tribunal’s suggestion that his stabbing may well have been an example of Port Moresby’s, street violence.
The Tribunal then in accordance with the procedure outlined in s 424AA of the Act drew to the applicant’s attention, firstly that he had in his statement and under questioning at the hearing stated that he witnessed his uncles being shot in 2012 at [Village 1]. The Tribunal then highlighted to the applicant that his brother at his part-heard Review Hearing in Case Number 1916622, had given evidence that in the 2012 attack of their village, one of their uncles had awoken the applicant and his brother who were in separate rooms and told them that their enemies were coming, and that they had to run into the bush. Further he and his brother had then run into the bush by leaving their house via a rear entrance. In reply the applicant said that he had been so woken up by his uncle at about 2am, and told to run into the bush and he had done so with his brother, but that he had also seen his uncles being shot and that he had been very close to them and that their blood came on to his face. He explained that he had been traumatised by seeing their killing. He further stated that his brother may have had a different experience but that he had seen his uncles shot. Under further questioning he again agreed that his uncles’ killers had not tried to shoot him when they killed his uncles.
He further agreed that his uncles’ killers had not pointed their rifles at him after they shot his uncles. However, he again stated that as he was running away, he had heard the firing of guns and that maybe they were then shooting at him, but he did not know that for sure.
Secondly, the Tribunal put to the applicant that some of his documents, the purported police report, the purported letter from the Provincial Governor of [Province 1] and the purported letter from Pastor [F] of [Church 1] were identical to documents that had been provided to the Tribunal in support of his brother’s matter, Case Number 1916622 and the matter of [Case Number 1917574]. The applicant in reply explained that the applicant [in Case Number 1917574] was a relative of his (an uncle) and that he had not obtained these documents himself but rather had received them from his sister in PNG for his use in his application. Further in reply he conceded that he did not know how or from whom these documents had been so obtained only that his sister had obtained them for him, his brother, and maybe other relatives.
The applicant in response to the Tribunal discussing the country information outlined below indicated that he accepted the information as to inter-group violence and police. He said as to the PNG police that they were generally corrupt and generally limited in their ability to provide assistance to the people of PNG. In so far as the information as to the ‘traditional limits in fights’ he told the Tribunal that he as a young man, is still likely to be targeted by his tribal enemies anywhere in PNG.
The applicant also raised with the Tribunal that he was concerned about his ability to get appropriate health care for his current recurring psychiatric injuries and illness as the services available in PNG would not provide the same level of care to him as he now receives in Australia.
In submissions by the applicant’s solicitor on the applicant’s mental health, it was submitted that he faced a likelihood of being discriminated and targeted for violence because of his membership of a vulnerable cohort being persons suffering from a mental disease in PNG. In this regard, the Tribunal’s attention was drawn to the copy of the US Department of State’s Country Report on Human Rights Practices: Papua New Guinea, which had been annexed to the written submissions of the applicant’s solicitor.
The Tribunal also heard from the applicant’s partner, [Ms A], who told the Tribunal that she had obtained the applicant’s hospital ‘discharge summary’ from [Hospital 2] dated 9 February 2015 after requesting a copy of same from the Hospital. She further informed the Tribunal that as to the applicant’s type written statement which had been annexed to his Statutory Declaration dated 31 July 2023, she had seen the applicant prepare most of that document himself and that he had further dictated part of that document to her, and she had typed those passaged for him. She said she had had no input into any of the actual contents of that document.
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 ‘Health’ at 2.16 and 2.17 where it is stated that:
In 2019, the latest year for which data is available, according to the World Health Organization (WHO), PNG’s life expectancy was 63 years for men and 67 for women. PNG has some of the worst health indicators in the Asia-Pacific. The country’s health system is fragile, with poor health and immunisation outcomes, and has been assessed by the WHO as among the 10 worst in the world. With an under-five mortality rate of 57 per 1,000 live births, an estimated 15,400 children (one in 13 children), die each year in PNG, mostly from preventable diseases. Similarly, with a maternal mortality ratio of 215 per 100,000 live births, an estimated 580 mothers die in childbirth each year. (By comparison, Australia’s under-five mortality rate is 3.7 per 1,000 live births and maternal mortality rate is 6 per 100,000 live births.) PNG has one of the highest rates of stunting (‘the impaired growth and development that children experience from poor nutrition and repeated infection’) in the world, with nearly every second child under the age of five years being stunted. Stunting harms long term prospects for education and employment.
PNG’s rate of COVID-19 vaccination at 6.7 per cent single dose, 5.5 per cent double dose, is among the lowest in the world. As at July 2022, the country officially had 662 COVID-19 related deaths, but observers consider the real figure to be much higher as testing in rural areas is extremely limited. PNG has the highest rates and number of HIV cases in the Pacific. Communicable diseases, including malaria, tuberculosis, diarrhoeal diseases, and acute respiratory disease are major causes of morbidity and mortality. Access to health care is extremely challenging for urban poor and rural remote communities.
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 ‘Police’ at 5.3 to 5.6 it is reported at 5.3 and 5.6 that:
The Royal Papua New Guinea Constabulary (RPNGC) is the national police force responsible for the investigation of crime and maintaining internal security in all regions of the country. At the time of independence in 1975, police services were estimated to only cover around 10 per cent of the country’s total land area and 40 per cent of the population. Since then, the size of the RPNGC has increased by only 30 per cent, while the overall population has more than quadrupled. In 2022, the strength of the RPNGC is approximately 5,500 personnel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC.
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.
And under the heading of ‘Prevalence of Fraud’ at 5.23 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 Tribunal has also considered the Australian Institute of international Affairs Australian Outlook report of 14 March 2022, ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’ which in part provides that:
“Fighting in Papua New Guinea? Really?”
This is the usual response I get when I tell people about the work the International Committee of the Red Cross (ICRC) undertakes in PNG alongside the PNG Red Cross. While only four kilometres in the Torres Strait/Zenadth Kes separate Australia and PNG, an understanding of the struggles faced by our next-door neighbours is distant for most Australians.
Since 2012, the ICRC has responded to tribal violence in PNG’s Enga, Hela and Southern Highlands provinces. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. While this number is tiny in comparison to other places where the ICRC operates like Syria and Yemen, these fights have considerable effects on Highland communities.
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.
The changing nature of tribal violence
While tribal fighting is not new to PNG or the Highlands, several factors have made the situation worse in the last 20 years.
For one, more than 50 percent of the nation’s population is under the age of 24. In the ICRC’s experience, the Highlands have an even higher proportion of youth. Few opportunities and limited employment in the region push many youths towards violence. Further, as PNG modernises, traditional cultural and tribal structures are rapidly changing. With more outside communications, traditional elders and leaders are losing their stabilising influence. Finally, the introduction of modern weapons and methods of warfare have led to more brutal outcomes.
In the Highlands, clans take up arms against each other to defend their pride and interests. The clan’s decision to escalate in response to a grievance is one made out of kinship and solidarity. The cause of a fight ranges from complex electoral outcomes or generational land disputes, to the simple souring of relationships, or a misunderstanding after an altercation.
Once the decision to fight is made, traditionally the man with the grievance is considered ‘the owner of the fight’ and the entire clan is expected to support him. If the grievance is held by a woman, often an elder male relative would be “the owner of the fight” on her behalf. He is responsible for calling the start and end of the fight. However, in recent years, ICRC has noticed a new trend — fights started by youths have done so against the advice of older clansmen and the owner of the fight, whose preference is for mediation.
Fights in the Highlands are unpredictable. Battles are short and intense but reaching a ceasefire or peace agreement can take months or years — many fights remain “frozen” with no active fighting for long stretches. Without a peace agreement in place the fight may resume at any moment. For this reason, the ICRC and the PNG Red Cross build and maintain connections with local Highland communities, enabling us to undertake neutral humanitarian action when needed.
Traditional limits 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] Australian Institute of International Affairs, Australian Outlook, ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’, Kobylinski A, 14 March 2022 – /forgotten-conflicts-tribal-violence-papua-new-guinea/

As to the issue of mental health support in PNG the Tribunal has considered ‘the interpreter’s’ report of 12 October 2022, published by the Lowy Institute titled; ‘World Mental Health Day: reflections from Papua New Guinea’ in which it is in part reported that:
…Yet according to mental health professionals, narrow perceptions of mental health in PNG are preventing people from seeking help. Ume Wainetti, a Papua New Guinean Gender Based Violence Counsellor, for example, explained:
Mental health [support] in PNG is considered to be for those who are severely mentally ill. Otherwise generally many people who experience trauma during tribal fights, natural disasters, workplace trauma, even the Bougainville conflict and family sexual violence, just to name a few, are not considered to need such professional help.
Aside from misunderstandings, people living with mental illness in PNG are particularly vulnerable to marginalisation. While conditions such as depression are frequently referred to as an “invisible illness”, its sufferers can face stigma, unemployment, poverty and isolation.
Despite the existence of a national disability policy, PNG has yet to pass comprehensive disability legislation. And although PNG has a stand-alone National Mental Health Policy, it does not provide human and financial resources estimated and allocated for implementation of the policy objectives. For example, despite a history of national policy efforts to support the development of small psychiatry units within provincial hospitals, most have none, and can only offer outpatient mental health care provided by psychiatric nurses.
Human resource constraints are a particular challenge, with only 0.14 psychiatrists per 100,000 population. While the number of graduate mental health nurses trained at some PNG tertiary institutions has increased, the majority are absorbed into general medical disciplines in provincial hospitals and major health facilities. Moreover, while PNG has a dedicated 80-bed psychiatric hospital outside of Port Moresby, congestion is common and bed occupancy rates at times exceed 150 per cent...[2]
[2] ‘World Mental Health Day: reflections from Papua New Guinea, Mckenna, K & Nasale, P, the interpreter, published by the Lowy Institute, 12 October 2022 - World Mental Health Day: reflections from Papua New Guinea | Lowy Institute
FINDINGS AND REASONS
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.
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].
Analysis
The Tribunal found the applicant to have been most anxious and uneasy during the hearing and that he often had trouble answering the Tribunal’s questions in a timely fashion. At times the applicant appeared distressed and needed the Tribunal’s questions to be repeated and/or further explained by the interpreter. In this regard the Tribunal found the applicant’s demeanour and overall conduct at the hearing to be consistent with the reports that the Tribunal had received from his treating Psychiatrists.
However, overall, the Tribunal found the applicant throughout the hearing to be a truthful witness who held subjective fears of serious harm arising from his beliefs that he was at risk of harm from his uncles’ tribal enemies. It was apparent to the Tribunal that the applicant believed that after the attack on [Village 1] in 2012 and he having being made aware or having actually seen two of his uncles’ being shot dead that he was and would be targeted for tribal violence in PNG.
Membership of a particular social group (PSG) of being ‘a family member of persons killed in tribal violence in PNG’
The Tribunal having considered the provisions of s 5L of the Act which provides that a person is to be treated a member of a PSG other than that person’s family if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. And that characteristic is innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society; finds that the applicant is a member of a PSG being ‘a family member of persons killed in tribal violence in PNG’
The Tribunal accepts in accordance with the relevant and available country information as outlined above at paragraph 53, as to inter-group violence, and the numerous media reports as to such violence that there was an attack which involved the killing of villagers and the burning down of houses and other property at [Village 1] in [Province 1] of PNG in 2012. It is also accepted that such tribal violence has continued from time to time since 2012 to the present day throughout [Province 1] of PNG. The Tribunal is also satisfied having accepted the applicant’s evidence that two of his uncles were shot and killed during that tribal violence in 2012 and, that he and his brother had fled [Village 1] during that attack.
However, the Tribunal for the reasons set out below is not satisfied that the applicant faced a risk or since, and now, faces a risk of harm from his uncles’ tribal enemies who attacked [Village 1] and killed his uncles in 2012.
In this regard, the Tribunal relies upon the applicant’s oral evidence under questioning at the hearing in which he agreed that his uncles’ killers did not point their rifles or try to shoot him during the 2012 attack of his village. As to the applicant’s evidence in this regard the Tribunal rejects the applicant’s suggestion and/or subjective view that when he had fled to the nearby bushland he may have been shot at by the attackers. It seems most unlikely if not implausible that the applicant would have been so shot at if just prior to him fleeing his village he had been standing within several metres from his uncles when they were shot, and he had not also been targeted by his uncle’s killers at that time. Having taken into account the applicant’s current psychiatric illness which presents with symptoms including short-term and long-term memory loss together with his PTSD diagnosis. And accepting his evidence that he had been urged with his brother to flee their home and village by his uncles who were shortly after killed either while he was fleeing or in his presence prior to him fleeing, the Tribunal although accepting of his evidence as to the attack is not satisfied that the applicant has been able to provide a clear and accurate account of this attack, notwithstanding his efforts to do so. As such the Tribunal has been left with a some-what vague account of the attack of his village. However, the Tribunal does accept that there was such an attack in which the applicant’s uncles were killed.
However, given that the applicant after fleeing [Village 1] for [Town 1] and then to Port Moresby and having then resided at and having worked at Port Moresby for five years from 2012 to 2017 without being the subject of any tribal related violence and/or confrontations and /or threats of violence from his uncles’ tribal enemies. And given the country information as to the ‘Traditional limits in fights’ as outlined above at paragraph 46 the Tribunal finds that the applicant has not, was not, and will not be specifically targeted by his uncles’ tribal enemies because of his past tribal affiliations.
Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future arising from his membership of the PSG of being ‘a family member of persons killed in tribal violence in PNG’ or for his past and present tribal affiliations.
The applicant’s fears in this regard as to being persecuted for his membership of this PSG is not well-founded given his past relocation to Port Moresby and his ongoing ability to return to Port Moresby in PNG where he was not targeted for tribal violence.
Membership of a particular social group (PSG) of being ‘a person having been diagnosed, suffering from and being treated for a mental disease’
The Tribunal having considered the provisions of s 5L of the Act and in accordance with the provisions of that section as outlined above at paragraph 64, finds that the applicant is a member of a PSG being ‘a person having been diagnosed, suffering from and being treated for a mental disease’ given the medical reports that have been provided to the Tribunal together with the Tribunal’s own observations of the applicant during the hearing.
As to this PSG the Tribunal has carefully considered the relevant available country information as outlined above at paragraphs 45 as to ‘Health’ and ‘Police’; and 47 as to mental health support and finds that not only is the applicant a member of this PSG who are a vulnerable cohort within PNG, but that adequate treatment is most unlikely to be able to be accessed by the applicant throughout PNG. Additionally with reference to the relevant country information the Tribunal also finds that the PNG authorities are not able to provide protection to members of this cohort including the applicant throughout PNG so as the may be protected from serious harm.
Therefore, on the evidence before it, the Tribunal finds that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future if he was to return to PNG arising from his membership of the PSG of being ‘a person having been diagnosed, suffering from and being treated for a mental disease’.
The Tribunal finds that the applicant’s fears in this regard are well-founded.
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 membership of the PSG of being ‘a person having been diagnosed, suffering from and being treated for a mental disease’ 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 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 his membership of the particular social groups of being a ‘a person having been diagnosed, suffering from and being treated for a mental disease’ 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.
…