1933816 (Refugee)

1933816 (Refugee) [2024] AATA 4332 (9 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1933816
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Tony Caravella
DATE:9 August 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 August 2024 at 6:34am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – tribal conflict – 40 people in family/tribe killed – relocated with no harm – would return to city, not village – family of person killed in car accident in Australia seeking compensation – applicant not driver but surviving passenger – country information – law enforcement and support organisations – no legal obligation to pay compensation for accidental death – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
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 4 November 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 15 November 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal by video conference on 23 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
The applicant’s claims made to the delegate.
In an Application for a protection visa form lodged with the Department of Immigration and Border Protection on 16 November 2017, the applicant claims he left his country because ‘they’ wanted to kill him. He claims 40 people in his family tribe were killed by a rival tribe. He claims it is not safe to go back to his country because he does not want to be tortured.
He claims when he returns to his country, they will kill him straight away. He claims he experienced harm in his country and claims he did not move to another part of his country to seek safety and that he came to Australia for protection. He claims he does not think he would be able to relocate. However, in reply to the question asking whether the thinks he will be harmed or mistreated if he returns, he ticked ‘No’. Further, in reply to the question on the application form asking if he thinks the authorities in his country can and will protect him if he returns, he ticked ‘Yes’ and then wrote ‘Australia’ in reply to the question asking which authorities would protect him. In relation to these apparent contradictory statements in the protection visa application form, I give the applicant the benefit of the doubt and disregard these contradictory entries as being a product of the applicant misunderstanding a form whose design could be significantly improved.
The delegate’s decision states that on 6 April 2019, the applicant submitted a statutory declaration with his bridging visa application and added a claim that 4 of his brothers were murdered by the ‘enemy tribe’ and that this is the reason the applicant is in Australia.
The delegate’s decision also refers to additional documents being submitted on 23 April 2019. These include:
·A summons from the [Village Court] dated 2 February 2019 stating the applicant is to attend the village court on 15 February 2019 in relation to the settling of a compensation payment due to the death of [A] [in] December 2018 in [City 1]. Also submitted is a Settlement Order dated 15 February 2019 stating that the complaint regarding the compensation payment has been dismissed as the death of [A] occurred in a foreign country; and
·A letter from [Mr B], Chairman of the Village Court, dated 26 March 2019, explaining the family of [A] initiated a motor vehicle insurance claim through the courts in PNG but that this was dismissed due to a jurisdictional issue. The letter also asserts the applicant has no clan or tribal support in PNG and advises the applicant to remain in Australia for his own safety.
The delegate’s decision also summarises the claims made in a protection visa interview held on 6 June 2019. This summary includes detail of the applicant’s claim that tribal conflict and fighting between his [tribe] and the [Tribe 1] has been going on for many years and claims all of his family, including [brothers] and his parents, are deceased. He claimed he fears his enemy will think he seeks payback/revenge for the deaths of his brothers. He also claimed he has limited education and did not have a regular job in PNG. He provided other supporting documents and letters of support.
The applicant also told the delegate he left his wife and children in Port Moresby. He claimed he is not longer in a relationship with his wife and has had no contact with her or his children.
The applicant told the delegate that [in] December 2018 he was involved in a fatal car accident in [City 2] and this claimed the life of [A]. The deceased’s family is asking him to pay compensation.
The applicant claimed he cannot return because the police cannot protect him because of corruption, and he does not know where he could relocate. He claimed if he did move he could be considered a sorcerer and that if there was a death in a new village he could be blamed as he would be the new person.
On 6 September 2019, the applicant provided a further statement of claims reiterating his assertions, a letter explaining death threats, a letter from the Chairman at the Village Court and a Settlement Order previously provided, and photos of his deceased brothers, burned houses and property destruction.
Evidence at the hearing
The applicant began his oral evidence by saying he had some documents about tribal fighting that was occurring, or had occurred, in his village. He said these were videos and photos of people who had passed on. I told him I would allow 14 days for the submission of these documents.
The applicant confirmed he was born in [Town 1]. He said he has also lived in [Town 2], Lae and Port Moresby. He said he moved to [Town 2] around 1992 to 1995 to avoid tribal trouble.
He told me he last returned to [Town 1] in 2012 but then returned to Port Moresby in 2012 and he has not returned to [Town 1] since then. He confirmed he worked as a subsistence farmer in PNG. The land he farmed belonged to his grandparents and it was passed on to him. He said there were people who wanted to grab the land and this led to tribal fighting so he ran away. He said the enemy tribe has now taken over the land. He referred to the enemy tribe as the [Tribe 2] tribe.
He confirmed his marital status as separated. He said he separated in 2017 and claimed there is no formal divorce in PNG. He told me he has a partner in Australia. Her name is [Ms B]. She was born in Australia. He said she is ‘half PNG and half Australian’. He confirmed he first arrived in Queensland then moved to Perth, and more recently moved to Melbourne. He currently works in a [workplace]. He attended primary school but not high school.
When asked to express his claims in his own words, he said that in Enga Province,tribes hire people to kill and a neighbouring tribe has killed 65 people from his tribe. He told me there are police, and the police have guns, but they have family who can also be harmed. He also referred to bribery amongst police in PNG.
In relation to the fighting, the applicant said it is a generational fight that started before he was born and the other tribe wanted his land because it is bigger and is on the other side of the creek. When I asked why they would target him now if he had been absent since 2012, and if they already had use of the land, the applicant said it is a generational problem, and said ‘it’s all about the land’. He said they tried to talk over the dispute but they have guns and it is easier to run away.
When I asked if he was ever harmed, the applicant said in PNG he had to watch out for his safety. As he had not answered my question, I asked him again if he had ever been harmed. He then conceded he had not been harmed and added he ran away to [Town 2], Lae and Port Moresby. He told me he was a street seller to earn a living. The applicant then told me that Port Moresby is not safe. He said he lived on the street and that he bought his ticket to come to Australia. He said he earned money from selling beetle nut.
When I asked if he had ever accessed or inquired into the assistance available by welfare organisations, he said he is not well educated and did not know the organisations.
He told me his health is fine but then said he has the trauma of witnessing violence. He said he has nightmares. He told me he is not receiving counselling and finds it difficult to communicate.
On asking if he has any personal experience with the police, he said the police attacked him when he was selling beetle nut and they would stop him from selling beetle nut on the street and they would take his money. He said the police arrested him once for street selling and put him in jail for several hours.
I referred the applicant to Country of Origin Information (COI) reports on such entities as the PNG Welfare & Placement Services in Port Moresby and asked whether he thinks he could access such support. He told me that when he was in Port Moresby he was not aware of such entities. He then said it would be difficult for him to access them because he is illiterate and has little education.
In relation to his claim that he might be accused of sorcery, he told me people in PNG believe in black magic and if he moves into a new area, they might not trust him.
The applicant confirmed his [brothers] were killed in a tribal fight that took place in [Year]. He then said his last brother to die was killed last year.
In relation to the claim that there was a compensation issue due to the motor vehicle accident and death of a [A], the applicant told me someone else was driving the car and the applicant was actually sitting in the back seat. The accident occurred in [Town]and the driver was also killed. He said in PNG they see it differently and even though he was not driving he was expected to pay. He said he is worried [A]’s family will kill him. He said the deceased’s family live in [Town 3]. He said the deceased’s family might recognise him. They contacted him when he had his old SIM card but he has now changed his SIM. He said the deceased’s family told him he had to pay compensation which amounted to 100 to 200 pigs and PGK50,000 or PGK100,000. When I asked whether he had offered the family any payment at all, he said he and other [workers] contributed AUD25,000 to send the body back to PNG. He then said he gave AUD1,500 towards the total.
In relation to the claim of payback, the applicant said that whoever survived the car accident will be expected to pay back. When I asked whether he intended to exercise payback against those responsible for the death of his brothers, the applicant told me that too many people have died already so he does not intend to seek payback for his brothers.
Upon asking if he holds any other fear of harm, faced with the prospect of returning to PNG, he said the situation there has gotten worse and he fears he will die if he returns.
I put it to the applicant that it would appear he could make an offer to pay the compensation if there was an obligation, cultural or legal, to do that. I also put it to him that the evidence that he was able to live in Port Moresby without being seriously harmed might lead me to conclude that he does not face a real chance of serious harm and that he does not need protection if he returns to live in Port Moresby.
The applicant told me he works in seasonal work and his finances have been tight. He said he now also has a partner and has rent and bills to pay, and such things as car registration. He said he has no savings.
The applicant told me he wants to see through his appeal for a protection visa with the Tribunal before he applies for a partner visa.
I put it to the applicant that COI reports that internal relocation can succeed if it is accompanied by NGO support and invited him to comment on this. The applicant then told me that bribery is the problem. He added that NGOs exist but bribery occurs and people live on the street.
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). 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 issue in this case is whether Australia owes the applicant protection obligations pursuant to the relevant provisions in the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
As at the date of this decision, no further documentary evidence has been received from the applicant despite my invitation extended at the hearing for the applicant to submit the evidence he claimed he wished to submit.
I proceed by accepting the applicant is a citizen of PNG. I also accept he holds no other citizenship or right to enter or reside in any other country whether permanently or temporarily. I accept if he is refouled, he will be refouled to PNG.
Does the applicant face a real chance of serious harm – s 36(2)(a)?
Based on the evidence before me I find the applicant has not been personally seriously harmed while he lived in PNG. However, I accept the absence of past harm cannot be determinative of the question of whether there is a real chance of future harm facing the applicant if he returns to PNG. I accept that the COI reports tribal violence occurs between different tribes and communities in PNG, and I accept that the applicant would be returning to PNG where all his family is deceased. Giving the applicant the benefit of the doubt, I accept his claim that the tribal dispute is over some land that he inherited. I accept that those who possess and use the particular land now may become suspicious and wary of the applicant if he were to return to his village, and if he were to take steps to repossess the land. However, I find nothing in the evidence before me to suggest he has such an intention, that is, an intention to return to his village to take steps to take back the land. I find his evidence is that he left his village in 2012 and has not returned there since. Based on the evidence before me, I find nothing in that evidence, or in the applicant’s circumstances generally, to suggest that members of the [Tribe 2] would search for the applicant and target him for serious harm if he returns to live in Port Moresby now or in the reasonably foreseeable future. Further, I find the applicant was able to live in Port Moresby before he decided to come to work in Australia, and based on the evidence before me I am not persuaded that he left his country to escape a real chance of harm of a kind that is prescribed by s 5J(5) of the Act.
I find his claim that if he returns to his country they will kill him straight away is an exaggeration, when I consider all the evidence. The evidence before me is that even though the applicant’s brothers are deceased, he has not been harmed and was able to live and to make a living that permitted him to subsist in Port Moresby, and also permitted him to save money to purchase travel to Australia. I find that even if the applicant faced challenges in Port Moresby, as he has described, he was still able to make a living and was not denied the capacity to subsist. Nor is there evidence before me to suggest that he experienced significant economic hardship that threatened his capacity to subsist in PNG; nor does the evidence submitted by the applicant suggest there was a denial of access to basic services, where the denial threatens the person’s capacity to subsist. Nor do I find there was a denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. Looking to the reasonably foreseeable future, and having regard to the evidence before me which I find indicates the applicant does not suffer any significant mental or physical health disabilities, I am satisfied he would be able to find work of some kind, or otherwise make a living as he was able to when he was living in Port Moresby in the past.

I have considered the summons from the [Village Court] dated 2 February 2019 stating the applicant is to attend the village court on 15 February 2019 in relation to the settling of a compensation payment due to the death of [A] [in] December 2018 in [City 1]. As the applicant declares he arrived in Australia in July 2017, and has not returned to PNG since then, it is clear that the applicant failed to appear at the court as he was in Australia at that time. I accept the evidence indicates the compensation payment was dismissed as the death of [A] occurred in a foreign country. I find nothing in the evidence to suggest the applicant faces a real chance of harm of any kind from his failure to present at the court in response to the summons.
I have considered the letter which was submitted which asserts the applicant has no clan or tribal support in PNG and advises the applicant to remain in Australia for his own safety. For all the reasons in this decision, I do not accept this letter provides credible or persuasive evidence to conclude the applicant in fact faces a real risk of such harm if he returns to PNG now or in the reasonably foreseeable future.
I accept the applicant’s claim that tribal conflict and fighting between his [tribe] and the [Tribe 1] tribe has been going on for many years. I find there may be a chance that his enemies may think he seeks payback or revenge for the death of his brothers, even though I accept his evidence that he does not seek such payback. However, I consider that with the passage of further time, and with the applicant returning to Port Moresby, and not returning to his village, consistent with the evidence that he has not returned for the past 12 years, the applicant will be able to live without a real chance of prescribed harm from his claimed tribal enemies if he returns to his country. I accept his claim that he might not have had a regular job in PNG, however I do not accept that this suggests he will not be able to make a living to subsist if he returns to PNG.
In relation to whether the applicant can access effective protection measures, in the remote and unlikely event that he should need such protection, I accept the COI[1] reports that the effectiveness of the Royal Papua New Guinea Constabulary is severely limited by resource and staffing constraints. However I do not accept that the COI suggests the protection is not durable or that there is not an appropriate criminal law, a reasonably effective police force and an impartial judicial system operating in PNG. Although I find the applicant does not face a real chance of serious harm as contemplated by s 5J(5) pf the Act, I also do not accept the COI indicates the applicant could not access effective protection measures should he need to do so.
[1] For example in the DFAT Country Information Report – Papua New Guinea (6 September 2022) paras 5.3 to 5.6
I have considered the applicant’s claim that if he relocated he could be considered a sorcerer and that if there was a death in a new village he could be blamed as he would be the new person and I am not persuaded by this claim. I accept there is COI reporting on sorcery and witchcraft in PNG. However, I find the applicant has claimed he moved within PNG and lived in [Town 2], Lae and Port Moresby without any harm, and with no evidence that he was accused of being a sorcerer or of practising witchcraft or black magic in these places. I find no credible evidence to suggest he would face such allegations, or harm of any kind on this basis now or in the reasonably foreseeable future if he returns to PNG and resumes living in Port Moresby.
I have considered the applicant’s claim where he asserted he has not accessed or inquired into the assistance available by welfare organisations in PNG. I have considered this in light of the COI reporting that where relocation has succeeded, it has typically been accompanied by substantial NGO support.[2] I accept that the applicant may not be a well-educated person and may not be familiar with organisations that can provide assistance to him if he returns, however I do not accept he is incapable of making relevant inquiries and connecting with NGOs that can provide him with assistance that he might require. I did not observe any serious impediment to communication on the part of the applicant during the hearing.
[2] Ibid, para 5.16.
In relation to the motor vehicle accident and the compensation claims made against the applicant by the family of the deceased, I begin by accepting that the applicant was a passenger in the motor vehicle when the accident occurred in [Town] and that this led to the death of [A]. Based on the documentary evidence submitted, and based on the apparent jurisdictional issue, it appears there is not a legal obligation on the part of the applicant to pay compensation to the family of the deceased. However, I understand that the applicant is concerned that the family of the deceased might still expect some compensation based on their tradition or custom. If that is the case, it appears to me, based on the evidence, that the applicant has managed to live and earn an income in Port Moresby in the past and that this option of relocating to Port Moresby is open to him now and in the reasonably foreseeable future if he returns to PNG. I find no evidence to suggest the family of the deceased would have the resources, or indeed the intention, to search and locate the applicant in Port Moresby.
For all of the above reasons and findings, having considered the claims individually and cumulatively, I find the evidence in this case leads to the conclusion that the applicant does not face a real chance of serious harm of a kind contemplated by s 5J(5) of the Act, and therefore does not meet the criterion specified in s 36(2)(a) of the Act.
Does the applicant face a real risk of significant harm – s 36(2)(aa)?
As I have found the applicant does not meet the criterion in s 36(2)(a) of the Act for refugee protection, I must consider whether the applicant meets the criterion pursuant to s 36(2)(aa) for ‘complementary protection’.
Section 36(2A) provides that ‘significant harm’ exists where a non-citizen will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the non-citizen; or the non‑citizen will be subjected to torture; or the non-citizen will be subjected to cruel or inhuman treatment or punishment; or the non-citizen will be subjected to degrading treatment or punishment.
I have considered all the evidence and claims before me individually and cumulatively and have set out my assessment of whether there is a real risk of the applicant being harmed in any way for the reasons claimed if he is removed to PNG, and in particular if he relocates to Port Moresby. For all the reasons I have set out in the preceding paragraphs, I am not satisfied that there is a real risk of the applicant being harmed in any way falling within the definitions of significant harm for any of the reasons advanced in his claims. Having regard to all the evidence and circumstances in this case, and for the same reasons discussed in the foregoing assessment of his refugee protection claims, I am also not satisfied that there is a real risk the applicant will suffer ‘significant harm’ on any basis identified or cognisable if he is removed from Australia to PNG and if he returns to living in Port Moresby.
For the foregoing reasons, I find the applicant does not meet the requirements prescribed in s 36(2)(aa) of the Act.
As I find I do not accept the applicant faces a real chance of serious harm of a kind contemplated in the non-exhaustive list of examples of ‘serious harm’ in s 5J(5) of the Act, and have also found he does not face a real risk of significant harm as defined in s 36(2A) if he returns to Port Moresby in PNG, it is not necessary for me to consider or to make further findings on the question of the availability of effective protection measures.
Conclusions
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tony Caravella
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 4332

9 August 2024

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