2000613 (Refugee)

2000613 (Refugee) [2021] AATA 5069 (16 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2000613
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Tamara Hamilton-Noy
DATE:16 December 2021
PLACE OF DECISION:  Melbourne
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 16 December 2021 at 9:10am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – political opinion – candidate in provincial election – post-election tribal violence – threats and relocation – relevantly consistent and credible claims and evidence – country information – tribal conflicts, election violence and effectiveness of police – risk of harm relates to all areas as effective protection measures not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 dependant.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 December 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant arrived in Australia [in] October 2017 and departed Australia [Date 1] January 2018. The applicant arrived in Australia again on [Date 2] January 2018 and his tourist visa expired on 17 April 2018.
The applicant applied for a protection visa on 27 April 2018.[1]
[1] Movement details taken from delegate decision, a copy of which was provided to the Tribunal by the applicant.
Claims and Evidence
Evidence before the Department
In his written protection application, the applicant stated he was born in [Village 1], [Town 1], Hela Province and that both of his parents are citizens of Papua New Guinea. He stated that his ethnic group is the Huli people of Hela province and that he is a Seventh Day Adventist Christian. He stated that he lived in Hela Province from [year] to 2017 and then lived in Port Moresby during 2017 for five months.
In the written protection application, the applicant stated that he had worked as an [Occupation 1] in Hela between 2011 and 2013; as [an Occupation 2] in [Location 1] Enga Province in a [Workplace 1] from 2013 to 2014; and as [an Occupation 3] at [a Workplace 2] in Port Moresby from 2014 to 2016. The applicant described himself as retired or unemployed since arriving in Australia.
The applicant stated he had left Papua New Guinea due to his political opinion, and that the ‘push factor’ had arisen from conflict during and after the 2017 general election. The applicant stated he had been one of the contestants contesting the Hela provincial [election] and had witnessed the election process as unfair and biased in favour of the current corrupt government. The entire electoral system was said to have been hijacked throughout the country. Most of the Highlands provinces had fallen victim to the failed electoral system, leading to conflict between political candidates and their supporters, causing destruction of properties, homes and businesses and costing lives. The same thing had happened in Hela Province but it was worse there and is still ongoing.
The applicant stated that he is a leader in his village and his tribe and secured voters and put his hand up to contest. After the election, conflict arose between his tribe and another tribe supported by the winning candidate. The conflict turned into a battle around Hela Province and cost hundreds of lives, destroyed homes, properties and businesses and led to homelessness. People who fled to other provinces were hunted down. The applicant was informed of a conspiracy to kill him and hid elsewhere.
The applicant stated that, if he returns to Papua New Guinea, he fears he will be threatened, harmed and killed, will be jobless and without business opportunities, will be homeless, will live in fear and will be hopeless. The applicant stated that he had moved to other provinces but safety was not guaranteed and he was lacking food and other necessities as he had no job or business. The applicant stated he would face harm as there is a plot to kill him and he believes he will be treated by political opponents, won’t be able to take part in ‘business spin offs’ and that the relatives of people killed in the tribal fight will take revenge.
Also on the Department file were emails sent from [Mr A], Department of Justice and Attorney General in Papua New Guinea, outlining the continuation of tribal fighting; a brochure of the applicant’s political candidacy; tertiary qualifications; media reports about Papua New Guinea; and money transfer details. Also contained on the file, in relation to a bridging visa application, was a letter from [Organisation 1] stating that the applicant had been assisted by the service and Centrelink and bank details, and a statutory declaration dated 5 July 2018.
The applicant attended an interview with the Department on 4 December 2019. The Tribunal had access to a recording of that interview, relevant parts of which are discussed further below.
On 8 December 2019, the applicant provided written submissions to the Department in response to concerns raised by the delegate at interview.
The delegate of the Department found that the applicant had been evasive and vague about his family composition, that he had omitted information at interview about his association with a business, that he had sent money overseas and not declared this to the Department and that he had not provided information when asked about contacts in Australia. Having regard to country information, the delegate accepted that conflict had arisen in Hela Province before and after the 2017 general elections, that ethnic fighting is endemic in the Highlands regions of Papua New Guinea and outbreaks are common in Port Moresby, the Highlands regions, Lae and Enga Province. Tribal violence occurs for a range of reasons including land issues, disputes over mining royalties, political concerns, accusations of sorcery and witchcraft, and payback under the wantokism system; and underlying violence can come to the fore during periods of heightened political activity, such as during elections, particularly in the Highlands. The delegate accepted the applicant was involved in the 2017 general election, that the election result led to tribal violence between the applicant’s tribe and another tribe based on political differences and that the applicant has a real chance of being harmed in the Southern Highlands due to his political opinion. The delegate found from country information that people regularly relocated internally to avoid violence and that conflicts from other areas sometimes extend to urban centres including Port Moresby and Lae. The delegate found that, while there were clear examples of tribal feuds migrating to urban areas, it was difficult to determine the extent of the issue due to the wider environment of pervasive crime, the complexity of motivations behind violent incidents and the under-reporting of crime. The delegate found that the applicant had resided in several areas of Papua New Guinea and had not faced any problems from tribal violence when he returned for a month in 2018. The delegate found that ‘the applicant’s tribe have not followed him to Moresby and nor have they made any threats against him in Moresby or any other area’. The delegate found that the applicant does not have a fear of serious harm in other areas of Papua New Guinea such as Port Moresby and was not satisfied that the real chance of persecution relates to all areas of Papua New Guinea. The delegate was not satisfied the applicant would face a real risk of significant harm for any of the reasons claimed, if he returns to Papua New Guinea.
A copy of the Department’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 18 August 2020, the applicant provided to the Tribunal photos of deceased persons apparently sent to him on WhatsApp messaging. The applicant’s representative provided written submissions to the Tribunal, relevant parts of which are referred to below.
On 3 September 2020, the Tribunal was sent further graphic photos of deceased persons, which the applicant’s representative submitted were from an attack in Port Moresby that had been sent to the applicant via social media.
On 28 April 2021, the applicant’s representative provided further written submissions to the Tribunal, relevant parts of which are referred to below.
The conduct of this matter has been significantly impacted by the COVID-19 pandemic. The matter was constituted to the member on 21 April 2021. On 29 April 2021, the Tribunal wrote to the applicant stating that it had considered all of the information before it and was unable to make a favourable decision on that information alone. The applicant was invited to an in-person hearing at the Melbourne Registry on 9 June 2021. The significant lead time for the hearing was due to the anticipating re-opening time frame of the Melbourne Registry. On 3 June 2021, this hearing was cancelled due to the ongoing lockdown in Melbourne. On 21 June 2021, the applicant was invited to a hearing to be held on 13 July 2021. On 28 June 2021, the applicant’s representative advised that the applicant was working in Perth and requested the hearing be rescheduled to a time when the easing of restrictions meant he could return to Victoria. This was granted by the Tribunal. On 12 August 2021, the applicant was invited to a hearing to be held on 6 September 2021. On 19 August 2021 the applicant’s representative requested that the matter proceed by a video hearing instead, given ongoing restrictions in Melbourne, and noted that the applicant was working as a fly-in-fly-out worker with limited availability for a video hearing due to the conditions when he was working off site. On 23 August 2021, the applicant was invited to a video hearing to be held on 6 September 2021. Prior to the hearing date, the applicant had difficulty joining a test run by video. Given this, the applicant was invited to attend a hearing by attendance at the Perth Registry, by video to the Melbourne Registry, on 30 September 2021.
The hearing proceeded on 30 September 2021 by video, with the applicant at the Tribunal’s Perth Registry, the Member in Melbourne by MS Teams video and the applicant’s representative separately by MS Teams video. The Tribunal was satisfied from the audio and video that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.
Following the hearing, on 8 October 2021, the applicant’s representative provided brief written submissions, a candidate poster and further email from [Mr A] dated 5 October 2021.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Consideration of Claims and Evidence
The applicant travelled to Australia on a Papua New Guinean passport and has at all times claimed he is a citizen of Papua New Guinea. The Tribunal accepts the applicant is a citizen of Papua New Guinea and has assessed his claims against Papua New Guinea as his country of nationality.
The Tribunal accepts the evidence given by the applicant about his background, which was given in a clear and spontaneous manner at hearing, and which is consistent with the information provided previously to the Department. In so finding, the Tribunal notes that it has listened to the delegate’s interview with the applicant and, having regard to the information given in that interview and to the manner in which the applicant gave his evidence at hearing to the Tribunal, the Tribunal does not have the same concerns as those expressed by the delegate as to the applicant’s background.
The Tribunal did find – consistent with some of the findings of the delegate – the applicant to give aspects of his evidence in a less than clear manner and to give information to the Tribunal that was not consistent with information he had previously provided to the Department. These matters, however, related to the applicant’s financial dealings and contacts in Australia. The Tribunal is mindful that the core of the applicant’s claims, and his claimed reasons for fearing return to Papua New Guinea, have been consistently and credibly given. The Tribunal is also mindful that the Department has accepted the core claims of the applicant regarding his participation in the 2017 election and claimed inability to return to Hela Province. Having considered the whole of the applicant’s evidence, including the information he has provided to the Department in writing and verbally, the documents and oral evidence he has provided to the Tribunal, and the submissions made on his behalf, the Tribunal makes the following findings.
The applicant was born in Hela Province. His parents are deceased and he was raised by uncles and relatives in Hela Province. After secondary school he completed further education and worked for different companies in Papua New Guinea. He was based most of his life in [Village 1], Hela Province, but travelled to other areas for work before returning to [Village 1]. His family does not own a permanent home in [Village 1], as the houses are makeshift and have no electricity. The extended family identifies several land and blocks in Hela Province as belonging to the family unit. The applicant has two biological children living in [City 1], whom he supports financially but does not have contact with.
The Tribunal found that the applicant gave inconsistent evidence at hearing about the other tribes he claims to have been in conflict with. However, the Tribunal is mindful that the hearing was conducted without the assistance of an interpreter and that the applicant appeared confused about the Tribunal’s questions regarding other tribes and whether they were in conflict with such tribes or working with them. The Tribunal is prepared to accept that the applicant’s confusion about the Tribunal’s questions may have contributed to the inconsistent evidence he gave on this point. Having considered the totality of the applicant’s evidence, the Tribunal is prepared to give the applicant the benefit of the doubt and find that he identifies as part of the Huli tribe, which is the main tribe in Hela Province, but that he also identifies as [Village 1], which is the name of his village.
The applicant spoke to the Tribunal in some detail about the election process and candidates for Hela Province, and his election strategies, and provided to the Tribunal documents relating to his political candidacy. The Department has accepted, and the Tribunal similarly accepts, that the applicant ran as a candidate in the 2017 general election in Hela Province. The Tribunal accepts that, after violence erupted following the 2017 election, the applicant moved to Port Moresby. He described that he had lived with a friend but also had moved around in fear for his safety for a two-month period. He described there being a conspiracy against him as a result of running in the election but was only able to give the Tribunal limited details about this. The Tribunal is prepared, however, to accept the applicant perceived he was at risk after the 2017 elections, on the basis that this is consistent with country information about the violence that occurred following the elections.
The Department has found – and again the Tribunal similarly accepts – that the applicant would be unable to return to Hela Province, part of the Southern Highlands, if he returns to Papua New Guinea now or in the reasonably foreseeable future. Tribal violence is reported to be particularly prevalent in the Highlands provinces, with conflicts between various groups becoming increasingly violent as individuals have increased access to firearms and other weapons, alcohol and other drugs.[2] Unrest in the Highlands area continued past the 2017 election, into 2018, during which time a state of emergency was declared following crowds setting fire to an airplane, the main provincial courthouse, the governor’s residence and other buildings in the Southern Highlands.[3] Tribal violence continued in the Highlands region in 2019,[4] and into 2020.[5] In April 2021, police were warning of the escalation of violence and lawlessness in the Eastern Highlands after 19 people were killed in tribal violence.[6] In August 2021, the courts ordered a recount of the 2017 election results due to irregularities in the process that had been followed, with the next elections due to be held in mid-2022.[7]
[2] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.37 & 2.38.
[3] Radio New Zealand, ‘PNG court orders recount for election which sparked violence’, 27 August 2021 at
[4] Southern Highland News, ‘More than 20 killed in PNG tribal violence’, 11 July 2019 at
[5] ABC, ‘Ten killed, including children, after gunmen open fire in PNG’s highlands’, 12 March 2020 at
[6] The Guardian, Police warn of ‘all-out-war’ as tribal violence in Papua New Guinea kills 19’, 12 April 2021 at
[7] Radio New Zealand, ‘PNG court orders recount for election which sparked violence’, 27 August 2021 at

The Tribunal accepts that if the applicant returns to Hela Province now or in the reasonably foreseeable future, he returns as a former political candidate in a heavily contested election that led to unrest and significant violence. The Tribunal is satisfied from the country information outlined above that the violence and unrest has continued since the 2017 election and, as of early 2021, was anticipated to increase. The Tribunal accepts that, due to ongoing violence and unrest in the Highlands, the applicant faces a risk of violence which amounts to serious harm, having regard to the instances of serious harm in s.5J(5), and that it is systematic and discriminatory. The Tribunal finds that the essential and significant reasons for the harm feared by the applicant are for the combined reasons of his membership of the particular social groups of former political candidates in the 2017 election and members of the Huli tribe. Given the ongoing levels of conflict in the Highlands, the Tribunal is satisfied that there is a real chance the applicant faces serious harm if he returns to Hela province now or in the reasonably foreseeable future.
The Tribunal then considered whether the risk of harm to the applicant relates to all areas of Papua New Guinea. The overall crime rate in Papua New Guinea is described as extremely high and as characterised by high levels of violence with crimes occurring randomly. Crime is especially high in Port Moresby and other major cities and the settlement areas of towns and cities are particularly dangerous. Machetes and firearms are often used in assaults and thefts and car-jackings, armed robberies, assaults, sexual assaults and stoning of vehicles are common. The types of crimes experienced in Papua New Guinea vary significantly by region and gender, and gender-based violence and crimes against children occur regularly.[8]
[8] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.35.
Tribal violence is reported to occur frequently across Papua New Guinea and to be triggered by a variety of reasons. Tensions lead to frequent outbreaks of fighting, rioting and looting, widespread destruction of property, disruption of services, death and serious injury. While tribal violence is particularly prevalent in the Highlands provinces, DFAT is aware of cases where tribes from the Highlands have carried on tribal violence in other parts of the country, including Port Moresby.[9] Given the risk of tribal violence in other areas of Papua New Guinea, including Port Moresby, the Tribunal finds that the real chance of serious harm to the applicant exists across Papua New Guinea.
[9] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.37 – 2.38.
The Royal Papua New Guinea Constabulary (RPNGC) is responsible for internal security across all regions, although the Autonomous Region of Bougainville maintains its own police force which has authority to enforce local law while the RPNGC has authority to ensure national law is enforced. The RPNGC is perceived very poorly within the community. Resource constraints limit the effectiveness of the RPNGC and police presence is negligible in some remote areas of Papua New Guinea. International bodies have identified abuses of power and the use of violence by police, including high profile incidents of police brutality in January 2015 in which a woman was shot and killed and a police officer subsequently charged over her murder, and January 2017 when two villagers were killed by officers in the outskirts of Port Moresby.[10] During 2020, the RPNGC were reported to engage in torture, cruel, inhuman or degrading treatment and punishment, a failure to investigate violence against women, arbitrary and unlawful killings, beating and abusing civilians, beating and taking money away from women, excessive force used against people in custody, arbitrary detention without evidence, harm to family members of alleged offenders, and sexual violence including against women in detention.[11]
[10] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 5.4 – 5.8.
[11] US Department of State, 2020 Country Reports on Human Rights Practices: Papua New Guinea, 30 March 2021 at
Given the high overall crime rate across Papua New Guinea, the culture of tribal violence and payback, and the role of police in physical and sexual assaults towards civilians, the Tribunal finds that the state is unable or unwilling to offer protection to the applicant from the harm feared and that there is not a reasonably effective police force operating in Papua New Guinea at present. The Tribunal finds that effective protection measures are not available to the applicant from the harm feared.
The Tribunal is satisfied that the applicant is owed protection under s.36(2)(a) for the reasons set out above.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
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.
…

[2021] AATA 5069

16 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies