2202451 (Refugee)
[2025] ARTA 1314
•14 May 2025
2202451 (REFUGEE) [2025] ARTA 1314 (14 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2202451
Tribunal:Senior Member G Cranwell
Date:14 May 2025
Place:Brisbane
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
The Tribunal affirms the decision under review to refuse to grant the second named applicant a protection visa.
Statement made on 14 May 2025 at 7:45am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – victim of family violence – gender-based violence – physical assault – fear of killing – no familial protection – forced return to Papua New Guinea – hallucinations – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994 (Cth), Schedule 2, r 1.12Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 February 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Papua New Guinea, applied for the visas on 30 November 2018.
The first and second named applicants appeared before the Tribunal on 8 May 2025 to give evidence and present arguments.
The applicants were represented in relation to the review. The representative appeared at the hearing.
BACKGROUND
Evidence before the Department
The first named applicant (the applicant) made her own claims for protection in the protection visa application. The second and third named applicants did not make their own claims for protection.
The applicant’s claims were set out in her protection visa application as follows:
I left PNG with my two children in fear of our lives. I have been physically and emotionally abused by my partner, [Partner A], for over five years. My children ([named]) had also been terribly abused and had to endure the kind of domestic violence I went through.
[Partner A] and I used to be classmates and family friends before I separated with my ex-husband (the father of my children). [Partner A] came to me in around 2012 after I separated from my ex-husband and said he wanted to be with me and look after my children even though he had a family of his own. We began a relationship in 2012 but from around 2015 he became abusive towards me and it got worse over time. He was abusive to me in front of my children as well as abusive towards them.
He threatened to kill me by hitting me with an iron bar and even his family (including his wife and her associates) had harmed me. I have to leave PNG to be protected and to get away from the violent life I was going through. My children also could not attend school due to so many disturbances in my life and theirs.
In March of 2018, my children and I fled to Australia for protection. We arrived in [City 1] and [Agency 1] assisted us in finding a shelter to stay and get advice about a protection visa application. My protection application never eventuated at that time because my partner [Partner A] located us through his friends here in Australia. He has a three year [visa] to frequently come back and forth to Australia. He flew over from PNG, found us at [Town 1] and took us back to PNG before I could lodge a protection visa. Fearing for my life and my children's, we had no choice but to follow him back to PNG. I did not know my way around [City 1] and I couldn't do much then.
I told myself that I would return back to Australia to stay. Being unemployed, I relied on selling whatever I can to get us back to Australia. [In] October 2018, my children and I escaped from my partner again and boarded the plane at Jacksons Airport and flew to [City 2] and travelled by road to [City 1]. We went to [Agency 1] on 24 October 2018 and were assisted immediately by them.
It was so hard to get enough money but I managed to bring my children and myself back to Australia away from [Partner A]. I believe he knows we are in Australia and I am fearful for the safety of my children's and my life.
The applicant also provided the following details of harm she experienced in PNG:
I've experienced abuses and life threatening situations from my partner [Partner A]. He was abusive to me in front of my children as well as abusive towards them.
On [a day in] November 2015, I received second to third degree [burns] after an argument with [Partner A] and his family (including his wife and her associates) who pushed me into a fire with hot stones. I have scars to prove my stories and every time I am asked to tell my story, it only brings bad memories of the terrible violence I have gone through.
In around 2016, [Partner A] also broke my arms while we were having an argument. He tried to hit me on the head with an iron rod and when I lifted my army to block it, the iron broke my arms. I had to go through a major operation my left arm but it is still painful.
In support of her application, the applicant also provided the following documents:
·[Hospital 1] Discharge Summary dated 14 September 2016;
·[Hospital 1] Discharge Summary dated 24 November 2017;
·Request for Diagnostic-Imaging Examination dated 27 November 2017;
·Letter from [Hospital 1] dated [in] January 2018; and
·Letter from [Hospital 1] dated [in] September 2019.
The letter from the [Hospital 1] dated [in] January 2018 relevantly stated:
[The applicant] was admitted to the [named] Ward of [Hospital 1] via Emergency Department with Fractures Ulna and Radius Left. The diagnosis confirmed by x-rays.
The above injuries allegedly sustained from an iron rod being hit to her forearm on [a day in] September 2016.
She was subjected to a major surgical procedure on [a day in] September 2016 where the fractures were operated, reduced and fixed with rush pins (x2).
She was re-admitted [in November] 2017 when the rush pins were removed.
…
Over sixteen months later she requested for this report for the purpose of legal perusal.
The letter from [Hospital 1] dated [in] September 2019 records that the applicant had a major surgical procedure on [a day in] September 2016, and was discharged on [the following day]. Notably, the letter accompanied the protection visa application lodged on 30 November 2018, but is dated after it. Similarly, the certification of the copy by a justice of the peace is dated 6 November 2018.
The applicant was interviewed by a Departmental officer on 5 October 2021, and the Tribunal has listened to a recording of that interview.
The Department sent a letter to the applicant on 13 October 2021 in the following terms:
Informaton before the department indicates the following which I consider to be relevant to the above claims:
- [Partner A] has listed your name and as his emergency contact when he travelled to Australia in March 2020, October 2019, September 2019, July 2019, April 2019 and February 2019. This appears to contradict information you have provided to the department as part of your protection visa application as it suggests you were still in contact with [Partner A] as late as March 2020.
- Information available in departmental records indicates that the address [Partner A] was residing at during his visit in March 2020 was the same address that you provided to me in your recent interview,[Address 1], [City 1] QLD. This information suggests that [Partner A] was aware of your whereabouts including your address [Address 1] in March 2020.
- Information available in departmental records indicates [Partner A] was also aware of your Australian mobile phone number [Phone Number 1] during his visits in April 2019, May 2019 and September 2019. Information before the department indicates he listed [Phone Number 1] as his own contact phone number while in Australia in May 2019. This information suggests that you were in contact with him when he visited Australia in 2019. Furthermore, it appears that in May 2019, he was contactable on your personal phone number which suggests that you were in close contact with him.
- Information available to the department indicates that [Partner A] did not travel to Australia between [dates in] March 2018 nor was he present in Australia at this time. This casts doubts on your claims that he travelled to Australia after locating you through onshore contacts and forcefully escorted you back to Papua New Guinea with your dependants against your will thus preventing you from lodging an application for a protection visa during your visit in March 2018.
The above information suggests that you were in contact with [Partner A] who knew your personal phone number and current address as late as at least March 2020. It suggests that you have continued to maintain contact with him and he is knowledgeable about your current whereabouts despite claims made as part of you application for protection. Furthermore, it appears that you have falsified events surrounding your visit in 2018 as departmental systems have been examined and [Partner A] was not in Australia on the date you claim he forced you to return to Port Moresby on the same flight as him.
This information is relevant as it suggests that your claims of escaping from and being fearful of [Partner A] may not be credible and that you may not be generally credible in regards to the testimony you have provided as part of your application. Information inconsistent with your claims may lead to an adverse credibility finding which may result in refusal of the application.
You are invited to comment on the above information.
The Tribunal notes in passing that none of these issues were raised with the applicant during the interview.
The applicant provided a written response to the Department on 24 November 2021. Relevantly, the response included the following documents:
·Written submission from the applicant’s representative dated 21 November 2021. Amongst other things, the representative submitted that “[t]here is a probability that [Partner A] travelled to Australia in March 201 not on his own passport”.
·Statutory declaration of the applicant dated 24 November 2021, stating that she had not been in contact with [Partner A] since she returned to Australia in October 2018. Further, she had not been visited by [Partner A] at her address [at Address 1].
·Letter (undated) from [Neighbour A] of [an adjoining home to Address 1], noting that the applicant has not had adult visitors to her unit other than her children and the girlfriend of her eldest child.
·Letter (undated) from [Mr A] of [Address 2].
·Letter dated 1 October 2021 from [Agency 1].
The letter from [Agency 1] attached a file note dated [in] March 2018 in the following terms:
- [The applicant’s] husband had arranged flights from [City 1] to Brisbane, Brisbane to PNG
- [The applicant] advised her husband had come to Australia with his friend to escort the family back to PNG
- [The applicant] was about to board her flight and was being called over the loud speaker by the airline. [The applicant] sounded scared and was whispering to avoid her partner hearing
- [The applicant] advised her husband was approaching her and could not speak and had to go
- [The applicant] stated she did not want to go with her husband, however felt she had no choice and did not want to embarrass him in front of his friend by resisting
- Worker offered to contact the international airport security in an attempt to intercept the flight. [The applicant] consented verbally. [The applicant] also advised that she would return to [City 1] when she could
- [The applicant] was unable to advise what company the flight was with or the flight number
- Worker contacted the airport security who advised without flight details they could not assist, as they did not have access to passenger information
- Security recommended worker contact Qantas and Air New Guinea in an attempt to speak with their security units to request assistance. The phone numbers were provided to worker
- Worker attempted to contact Qantas security on 3238 2700 and received a recorded message with select option. Worker selected option, however worker was not transferred - recorded message continued to play
- Worker attempted to contact Air New Guinea on 4088 1047 however number rang out
- [Name] (Homelessness Support Worker) contacted [Agency 2] officer – [Officer A] to request assistance. [He] advised without a court order, police had no power to act.
- Worker spoke with [name] (Homelessness Case Worker) and Senior Mgt and advised of the above
- Worker then contacted the Australian Federal Police and spoke with [Officer B] to request assistance. A job number was issued [number] and worker was advised an officer from Airport AFP would call once they have investigated the flights. [Officer C] from AFP called worker to advise the flight had departed and once it pulls away from the terminal, there is nothing more they can do. [Officer C] advised [the applicant] and her two children were on flight Air New Guinea TX4
- [Officer C] stated [the applicant] was with no other persons when she boarded other than her two children. Worker advised [Officer C] [the applicant’s] husbands name is [Partner A]
- Worker requested further advice, however [Officer C] stated there was nothing further her could recommend
- Worker contacted Australian Customs & Border Force who advised they could not assist and suggested worker contact the Brisbane Airport to follow up. Worker advised contact was initially made with Brisbane Airport Security who could not assist
- Worker explored DV services/assistance in PNG and provided a DV hotline number to [the applicant’s] Homelessness Case Worker
Evidence before the Tribunal
The applicant provided a submission on 4 April 2025, which relevantly stated:
Reply to Paragraph 1:
Yes, I am a single mother with two biological children, both boys. I officially divorced with the father of my children and was living with my children when I met [Partner A] in 2012. [Partner A] was very abusive to my children and myself. I know this has affected my children physically, emotional and for me, talking about all these brings back the memories fresh to my mind of all that [Partner A] had done. [Partner A] lifted an iron bar and aimed at my head. I lifted my left hand up to block my head and as a result, both bones on my left hand broke, one had broken to some pieces and the other broke in half. If I had not lifted my hand up to protect my head, I do not know where I will be today. [Partner A’s] wife also pushed me into a fire with hot rocks. When I got out of the fire, skin has [peeled off] and the hypodermis layer of the skin was exposed, bit of blood and water was running down and flies came flying around me. So both [Partner A] and his wife had caused me injuries.
Reply to Paragraph 2:
I resigned from [my employment] to assist [Partner A] run his [Business 1]. I was without a job and I was assisting very much in running the business. I am a none English speaker and what I may say as being employed is not necessarily being employed with a paid salary but employed in the sense that I was assisting run the business. I was without a job and I need to pay for my sons school fees, food, clothing etcetera for our well being and that is what I turn to do, assisting run the business. I was not assisting the [Business 1] after sustaining the injury, broken bones [specified].
Reply to Paragraph 3:
I again say, I was assisting and when I got injured by [Partner A], [specified injury], I was obviously unable to assist run the [Business 1]. I was not on a paid salary and I am not an English speaker and may not fully understand the full meaning of employee as to an English speaker from birth. I learnt to speak English, I have my language and I have Tok Pisin and can speak two more languages. English is not my first language. I would say, I have learnt more in the years I have lived here in Australia. When I say employee, I am really saying, assisting [Partner A] run [Business 1].
Reply to Paragraph 4: Dot point 4:
I was assisted with paper work and documentation and lodging the claim by [Agency 1] and I understand [Agency 1] is a busy place for all women of all race and color to go in for help and or assistance with matters. I would be called in to sign papers or information that I may need to provide and leave. I know the officer that assisted me with my claim has done her best and that is all I can say. I was new and I trusted the whole process.
Reply to Paragraph 4: Dot point 5:
The injury took place on [the day in] September 2016 as mentioned in the Summary from the officer that attended to me. I attended to emergence department at a private hospital. From there I was referred to the general hospital for the operation. I got admitted at the general hospital on [a day in] September 2016 and got operated on the same day. Spent and night in hospital and got discharged [later in] September 2016. The reports are accurate and correct copies of the events.
Reply to Paragraph 4: Dot point 3:
In the interview I stated clearly that I lifted my left arm up to block my head and got both bones on my left hand broken. I clearly said I had both bones on my left hand broken when I was hit by the iron bar.
Reply to Paragraph 4: Dot point 4:
I was really saying I was injured in September 2016 which is consistent with the paper reports from hospital and emergency and mentioned September 2016 in most of the statement.
Reply to Paragraph 4: Dot point 5:
I was injured when I was at the [Business 1] premises and was assisting with some work and have not assisted the business again when I was injured and resting. The records from the doctor that operated my hand and the emergency department gave supporting evidence of my story of the injury I sustained during the violent attach by [Partner A].
Reply to Paragraph 5:
I was in the province on November 2015 and [Partner A’s] wife and her relative came to where I was living, at my sister's place. I was preparing to cook a special dish with hot stones when I was pushed into the fire by [Partner A’s] wife. I got up and realized that I have been burnt and my skin had peeled off leaving the hypodermis exposed and blood and water came out of it. I mentioned that I went home to visit my niece who was in hospital, sick. I was preparing the hot stones to cook her food to go and visit her when [Partner A’s] wife came and attacked me by pushing me into the fire having the second layer of skin exposed. [Partner A’s] wife and relatives came in boats from the island obviously traveled to attack me. [Partner A] was in the province, [Town 2] but was not at the exact location of the incident. When incident happened, [Partner A] was called to return to his village together with his wife and relatives, to sort the matter out. [Partner A] and his wife and children and returned to Port Moresby. At this stage I was living with my sister on mainland and not at my island. When I say mainland, I mean the island of East New Britain, Papua New Guinea. I come from [a location] called [District 1]. [Partner A] comes from an island called [name] and I come from [a location] called [name]. I was on the island of East New Britain, [in Town 2], with my sister. I remained with my sister for a month then returned to Port Moresby.
Reply to Paragraph 6:
On March 2018 we returned to PNG with [Partner A]. [Partner A] came and took us back. I say he was here because he was here. I do not know how there was no record of [Partner A] being in the country at that time. I can only say [Partner A] was here and took us back. I believe spirits have been involved in this instance. Coming from a cultural background of believing and using spirits to move around and do things with spirits, a similar culture to some indigenous community cultures, is very highly practiced in my culture too. My cultures and traditions are [Partner A’s] cultures and traditions too. I can say again, [Partner A] came and took us back.
Reply to Paragraph 7:
I have not heard from [Partner A] and had not made any contact whatsoever with [Partner A] since we moved here in October of 2018.
Reply to Paragraph 8:
In regards to putting my name as emergency contact, I do not have any information or idea about those dates and [Partner A] putting my name and number down as emergency contact.
Reply to Paragraph 9:
I was living with my children at [a unit at Address 1], and had not contact whatsoever with [Partner A]. I do not have any knowledge of where he got the address from.
…
The applicant also provided photographs of her left arm immediately following surgery, along with photographs of x-rays taken on 14 September 2016 showing pins in her arm.
At the hearing, the applicant stated that she commenced her relationship with [Partner A] in late 2012. At the time, she did not know that [Partner A] was married and had a family with his wife. The applicant moved into a rental property in a suburb of Port Moresby, which was a few streets away from [Partner A’s] family home. [Partner A] would travel to and from the two residences.
The applicant stated that she moved back to her own house at [Town 3] in Port Moresby in either 2014 or 2015. Around that time, the applicant started helping [Partner A] with running his business, [Business 1]. She did not have a formal role in the business, but was helping as a family member.
The Tribunal asked the applicant whether she was a director or shareholder of [Business 1]. The applicant stated that she was not.
The Tribunal put to the applicant that publicly available information on the PNGI Portal indicated that she was a director and shareholder of [Business 1]: Search | PNGi Portal. The applicant stated that she had no idea of this.
The Tribunal asked the applicant to describe her relationship with [Partner A]. The applicant stated that at the beginning, it went well. She thought he was going to leave his wife and children. After she moved to [Town 3], he would visit her in the evening when he was drunk. He would turn the music up when he came to the house, and bash her up. The applicant would scream, and the neighbours would be able to hear it. This was not good for the boys (ie, the second and third named applicants), as it would disturb them.
The Tribunal asked the applicant whether she ever approached the police. The applicant stated that she lived not far from the police station, and made one or two reports. However, nothing happened as a result of the reports.
The Tribunal asked the applicant to describe the incident which she claimed occurred on [the day in] November 2015. The applicant stated that she had returned to her village to celebrate her niece’s birthday and the opening of a new church. She was cooking a special meal on a big fire with hot rocks. [Partner A’s] wife and several other people walked into the house without announcing themselves. The wife pushed the applicant into the fire, and the applicant sustained [burns].
The Tribunal asked the applicant whether [Partner A] was present. The applicant stated that [Partner A] was not present.
The Tribunal put to the applicant that any harm she experienced on this occasion was at the hands of [Partner A’s] wife, and not [Partner A]. The applicant agreed with his. She stated that [Partner A] had told his wife that the applicant was forcing herself on him.
At the Tribunal’s request, the applicant showed the Tribunal the [affected body parts], which revealed some scarring.
At the Tribunal’s request, the applicant also showed the Tribunal a long scar on her left arm.
The Tribunal asked the applicant to describe the incident which she claimed occurred on [the day in] September 2016. The applicant stated that she had been in the office doing photocopies for herself. [Partner A] came into the office and asked her about work. The applicant said she was there to do her own photocopying. [Partner A] became angry, and took a piece of iron and came straight at her. The applicant put her left arm out to protect her head, and was struck in the arm.
The Tribunal asked the applicant whether she continued her relationship with [Partner A] after this incident. The applicant stated that she had no other job at this point, and needed his financial support in order to support her children.
The Tribunal asked the applicant how she came to travel to Australia. The applicant stated that once she received her entitlements from her former [job], she got tickets and left for Australia.
The Tribunal asked the applicant about her visit to Australia in March 2018. The applicant stated that after she arrived, she went to the [specified] centre. They directed her to [Agency 1], who commenced the process of making a protection visa application.
The applicant stated that she left Australia to return to PNG on [the day in] March 2018. [Partner A] came around and threatened to report her to immigration. He told her that she had to go back with him, which she did.
The Tribunal put to the applicant that, as recorded in the delegate’s decision, the records of the Department indicate that [Partner A] was not present in Australia in March 2018. The applicant stated that in her society there is a belief in spirits. Someone can walk into a home without anyone seeing them. This is sometimes described as “black magic”. [Partner A] was there, but she does not know whether anyone else could see him or not.
The Tribunal asked the applicant whether [Partner A] was physically present in Australia. The applicant stated that he was here. That is all. He got on the plane with her.
The Tribunal asked the applicant how she explained the Department’s records that [Partner A] was not present in Australia. The applicant stated that she has no explanation. He was physically here, whether or not it appeared on the Department’s records.
The Tribunal asked the applicant about her previous representative’s submissions that [Partner A] has travelled to Australia on a passport issued under another name. The applicant stated that she had no idea about that.
The Tribunal noted the existence of the contemporaneous file note made by [Agency 1] on [the day in] March 2018. However, it put to the applicant that the file note was based on information provided by the applicant, and [Agency 1] had no independent knowledge of whether [Partner A] was present in Australia. The applicant stated that she did call from the airport, and that was what she told them.
The Tribunal asked the applicant whether she continued her relationship with [Partner A] after she returned to PNG. The applicant stated that she went back to him, but remained in contact with [Agency 1]. She then came back to Australia in October 2018.
The Tribunal asked the applicant whether [Partner A] was angry that she had left. The applicant stated that he was angry, and there was a lot of bashing again.
The Tribunal asked the applicant where she lived when she returned to Australia. The applicant stated that she lived in a property in [a named street]. She subsequently moved to an address at [Address 1] in 2019.
The Tribunal asked the applicant when she got her mobile telephone number. The applicant stated that she got it when she came back to Australia in October 2019.
The Tribunal put to the applicant that, as recorded in the delegate’s decision, [Partner A] had listed her [Address 1] address as the address he intended to stay at when he travelled to Australia in March 2020. The applicant stated that she has no idea how he got that address. He did not stay with them.
The applicant’s stated that she gave her address to a couple of friends in PNG. It is possible [Partner A] got the address from them.
The Tribunal asked the applicant why [Partner A] would have provided her address if he did not intended to stay with her. The applicant stated that she had no idea. Privacy is not important in PNG, and he could have obtained her address.
The Tribunal asked the applicant whether she gave her telephone number to anyone in PNG. The applicant stated that she gave it to her sister and niece.
The Tribunal asked the applicant whether her sister or niece would have given her telephone number to [Partner A]. The applicant stated that they would not have done that.
The Tribunal put to the applicant that, as recorded in the delegate’s decision, [Partner A] had listed her number as his own number when he travelled to Australia in May 2019, and had listed the applicant’s name and number as his emergency contact when he came to Australia in April 2019. The applicant stated that she had no idea. It is a question she has asked herself as well.
The Tribunal asked the applicant what was the “purpose of legal perusal” for which she obtained the report from the [Hospital 1] dated [in] January 2018. The applicant stated that she wanted the report to make a complaint to the police.
The Tribunal asked whether the police took any action. The applicant stated that she went to the station a couple of times, but no action was taken.
The Tribunal asked the applicant about the second named respondent’s circumstances. The applicant stated that he was [age] years of age, living with his girlfriend, and had a job at the mines. The Tribunal put to the applicant that he may not fall within the definition of member of the family unit contained in r 1.12 of the Migration Regulations 1994 (Cth) (the Regulations), as he no longer lived in the same household and was not dependent on her.
The Tribunal asked the applicant whether there was anything else she wished to raise. The applicant stated that everything had been covered.
The Tribunal took evidence from the second named applicant. He stated that he did not see [Partner A] in Australia in March 2018, and that [Partner A] did not accompany them on the return flight to PNG.
The second named applicant gave evidence that [Partner A] would come to their house in PNG, turn the music up loud and engage in abusive and violent behaviour towards the applicant. The second named applicant did not see this occurring, but he could hear it from elsewhere in the house.
The Tribunal asked the second named applicant whether the applicant had told him how her arm was broken at the time in September 2016. The second named applicant stated that the applicant briefly told him that her arm was broken when she blocked a blow from a steel bar wielded by [Partner A].
The Tribunal asked the second named applicant when he lived at the [Address 1] residence with the applicant. The second named applicant stated that he lived there from 2019 until he moved in with his girlfriend in 2022.
The Tribunal asked the second named applicant whether he saw [Partner A] visit the [Address 1] residence while he was living there. The second named applicant stated that [Partner A] did not visit.
The Tribunal put to the applicant, using the procedure in s 359A of the Act, particulars of information that might cause it to doubt her credibility generally. It explained to the applicant that if it found her evidence to be lacking in credibility, that would form the reason, or part of the reason, for affirming the decision under review.
The first particular was the evidence of the second named applicant that he did not see [Partner A] in Australia in March 2018. This was supported by the Department’s records which indicated that [Partner A] was not in Australia at that time. This suggested that the applicant’s evidence that [Partner A] had travelled to Australia and forced her to return to PNG may be lacking credibility.
The applicant stated that she has said what she has said, and she stands by it.
The second particular was the evidence that [Partner A] had listed her number as his own number when he travelled to Australia in May 2019, and had listed the applicant’s name and number as his emergency contact when he came to Australia in April 2019. This suggested that the applicant’s evidence that she had no contact with [Partner A] after she came to Australia in October 2018 may be lacking credibility.
The applicant stated that she has no information or knowledge as to how [Partner A] came to have her address and telephone number. She knows nothing about it.
The Tribunal asked whether there was anything else the applicant wished to raise. The applicant stated there was nothing else.
The representative referred the Tribunal to the following article: Craig Steel, ‘Hallucinations as a trauma-based memory: implications for psychological interventions’ (2015) 6 Frontiers in Psychology 1. The representative also conceded that the second named applicant no longer fell within the definition of member of the family unit for the purposes of r 1.12 of the Regulations.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The Department file includes a copy of the applicants’ Papua New Guinean passports. Given this and the absence of any evidence to the contrary, the Tribunal finds that Papua New Guinea is their country of nationality and also their receiving country for the purposes of the definition in s 5(1) of the Act.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal accepts that the applicant’s harm was fractured on [the day in] September 2016. The applicant showed the Tribunal a long scar on her arm at the hearing. This scar is consistent with photographs the applicant had provided immediately following the surgery, as well photographs of x-rays showing the position of metal pins in her arm. The Tribunal provided discharge summaries and medical reports from the [Hospital 1]. The second named applicant also gave evidence that the applicant had broken her arm in September 2016.
For completeness, the Tribunal places little weight on one of the medical reports being dated [in] September 2019, but having been submitted with the protection visa application lodged on 30 November 2018 and certified prior to that date. In the Tribunal’s view, the most likely explanation for this is a typographical error. The balance of the evidence heavily outweighs any concerns arising from an incorrect date.
The Tribunal further accepts that the applicant sustained her broken arm as a result of being hit by [Partner A] with an iron rod. The medical report from the [Hospital 1] dated [in] January 2018 noted that “[t]he above injuries allegedly sustained from an iron rod being hit to her forearm [in] September 2016”. The second named applicant also gave evidence that the applicant had told him contemporaneously that her broken arm resulted from being hit by [Partner A] with a steel rod. Given that the Tribunal has accepted that the applicant sustained a broken arm on [the day in] September 2016, the injury must have been sustained in some manner. The Tribunal has a medical report and the evidence of the second named applicant, in addition to the applicant’s own evidence, suggesting that it was sustained by [Partner A] hitting her with an iron rod. It has no evidence to suggest otherwise.
Related to this, the Tribunal accepts the broader narrative that [Partner A] engaged in other acts of domestic violence against the applicant. The applicant’s evidence in this regard is supported by the evidence of the second named applicant. The Tribunal considers that the second named applicant was particularly credible given that he was prepared to give evidence that contradicted the applicant’s evidence on the issue of [Partner A’s] presence in Australia in March 2018, which is discussed below.
The Tribunal also accepts that the applicant was pushed into a fire by [Partner A’s] wife on [the day in] November 2015. The Tribunal was shown signs of scarring on the applicant’s [body] at the hearing consistent with burns. The scars themselves do not in themselves establish how the burns occurred. However, the Tribunal considers that it is plausible that [Partner A’s] wife knew of the applicant’s affair with her husband, and wished to harm the applicant as a result of the situation.
The Tribunal accepts that [Partner A] was not present in Australia in March 2018. Evidence from the Department indicates that [Partner A] was not present in Australia in March 2018. The Australian Federal Police advised [Agency 1] that there were no other persons present when the applicants boarded the flight. The second named applicant also gave evidence that he did not see [Partner A] in Australia in March 2018, including at the airport. The Tribunal considers that the second named applicant’s evidence in this regard is particularly credible, as it did not support the claims to the contrary made by the applicant.
The Tribunal therefore does not accept that [Partner A] travelled to Australia and forced the applicant to return to PNG with him in March 2018. This is a straightforward finding to make given its finding that [Partner A] was not present in Australia at that time.
The Tribunal accepts that the applicant telephoned [Agency 1] on [the day in] March 2018, advising that she had been located by [Partner A] who had arranged return flights for the applicants. The applicant’s former representative provided the Department with a file note made by [Agency 1] of a telephone call made by the applicant on [the day in] March 2018. There is no suggestion in the Department file that this file note was anything other than a contemporaneous record of a telephone conversation with the applicant, and the Tribunal has no reason to suspect otherwise.
The Tribunal has found the applicant’s claims of [Partner A’s] presence in Australia in March 2018 to be puzzling. When presented with cogent evidence from the Department regarding [Partner A’s] absence from Australia, the applicant maintained her claims that he was present. Even more puzzling, when she heard the second named applicant give evidence at the hearing that [Partner A] did not accompany them on the flight, the applicant continued to maintain her claims that he was present.
The Tribunal was left with the impression that the applicant holds a genuine but false belief that [Partner A] came to Australia in March 2018 and forced her to return to PNG. The genuineness of the applicant’s belief is supported by the fact that her call to [Agency 1] from the airport on [the day in] March 2018 resulted in efforts being made by [Agency 1] to prevent the flight departing with the applicant. The Tribunal considers it puzzling that the applicant would have risked being removed from the flight, only for the authorities to then discover that [Partner A] was demonstrably not there.
The representative submitted that the applicant’s behaviour could be explained by way of a hallucination. At p 2-3 of the article cited above, King discusses the process by which the applicant may have interpreted an intrusive memory, triggered by her recounting of details of her abuse in the preceding days, as the actual presence of [Partner A]:
Exposure to traumatic events is likely to result in more frequent and distressing intrusive trauma-related memories. Crucially, it may be particularly confusing for these individuals to identify these intrusive phenomena as a memory. Given schizotypal personality is associated with unusual beliefs such as clairvoyance and telepathy, they may be predisposed to making sense of highly emotive intrusive phenomena within the context of these beliefs. For example, a short extract of speech may be given an external origin, thus becoming a voice hearing experience. Or a visual intrusive memory of being attacked may be interpreted as a vision, or premonition, of a planned future attack. The latter example highlights how the interpretation of intrusive memories may contribute to the development and maintenance of a number of psychotic symptoms …
The Tribunal is unwilling to accept that the applicant experienced any form of psychosis in the absence of medical evidence. However, the applicant gave evidence that she held beliefs relating to spirits and black magic. While King terms such beliefs as “unusual”, they were culturally “usual” beliefs for the applicant. In this regard, the Tribunal notes the following contained in Mental Health First Aid Australia’s Mental Health First Aid Manual (4th edn, 2017) at p 57:
The signs and symptoms of psychosis may vary from person to person and can change over time. It is also important to consider the spiritual and cultural context of the person’s behaviours because what is interpreted as a symptom of psychosis in one culture may be considered normal in another culture. In some Aboriginal communities, for instances, being visited by spirits or hearing the voices of deceased loved ones are normal experiences.
[footnote omitted]
Having regard to the applicant’s cultural beliefs, the Tribunal does not consider that the applicant’s false evidence relating to [Partner A’s] presence in Australia in March 2018 infects the credibility of her other evidence.
The Tribunal accepts that [Partner A] gave the applicant’s [Address 1] address as the address he intended to stay in Australia in March 2020. The Tribunal also accepts that he gave the applicant’s telephone number as his own number in May 2019, and listed the applicant’s name and number as his emergency contact details in April 2019.
However, the Tribunal accept that [Partner A] did not visit the applicant at the [Address 1] address during his travel to Australia. In addition to the applicant’s own evidence, the second named applicant gave credible evidence that he was living at the address at the time and did not see [Partner A] there. The applicant also provided a letter from [Neighbour A], who lives in the neighbouring unit and stated that he had not seen any adult persons residing at the applicant’s address other than the second named applicant’s girlfriend.
The Tribunal accepts that the applicant had no control over what address or telephone number [Partner A] provided to the Department upon his arrival in Australia. The applicant’s evidence was that she had provided her address and telephone number to several people in PNG, so it is at least plausible that [Partner A] may have obtained that address and number from someone in PNG. The Tribunal is unwilling to speculate on [Partner A’s] motivations for providing the applicant’s address and telephone number to the Department, with the paramount finding in this regard being that [Partner A] did not visit the applicant in Australia.
The Tribunal accepts that there is a real chance that the applicant would suffer serious harm if she were to return to Papua New Guinea, now or in the reasonably foreseeable future. Given [Partner A’s] history of violence, the Tribunal considers that there is a high likelihood that he would engage in further acts of violence against the applicant if she were to return to Papua New Guinea. The Tribunal accepts that this harm would amount to significant physical harassment, significant physical ill-treatment and/or a threat to the applicant’s life or liberty for the purposes of s 5J(5) of the Act.
The latest DFAT Country Information Report: Papua New Guinea dated 6 September 2022 (the DFAT Report) contains the following information on violence against women (at [3.18]-[3.25]):
Violence against women and girls in PNG is very common, among the most common in the world. In PNG, such violence is sometimes referred to as Gender-based Violence (GBV) or Family and Sexual Violence (FSV). Sources report that almost all women and girls will be subject to violence at some point during their lives. The PNG Demographic Health Survey of 2016-18, which is the latest data available, found very high levels of violence against women: 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15 (including 48 per cent in the last 12 months); 28 per cent experienced sexual violence; and 18 per cent of women who had been pregnant had experienced violence during their pregnancy. The PNG Coalition of Parliamentarians to End GBV states that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of GBV every year.
DFAT assesses that women across PNG face a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict their ability to fully participate in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide. Women who are subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.
‘Bride price’ payment remains a common cultural practice in PNG (including among elites). A bride price is a sum of money ranging from PGK2,500 (about AUD1,050) to PGK300,000 (about AUD126, 490) paid to the woman's family by the groom or his family. Bride price is a long-standing Melanesian tradition, and is intended to strengthen familial bonds. However, in recent years it has become increasingly monetised and led to a sense of ‘ownership’ of wives in some cases, giving husbands a sense of entitlement which can be seen as permitting violence. Furthermore, an obligation to pay back bride price in the case of marriage breakdown has complicated the ability of women to leave violent relationships, with their own families sometimes pressuring women to return to their husbands to avoid triggering such an obligation.
While there has been significant attention paid to the level of GBV in PNG by the national government and NGOs, and some state resources made available to address it, the police response remains inadequate. The RPNGC lacks the capacity, including most especially vehicles, fuel and human resources, to respond to crime generally … However, its response to GBV is especially lacking. Domestic and international sources report that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Statistics provided by the RPGNC between December 2017 and October 2018 showed 2,013 family and sexual violence (FSV) cases were reported in Port Moresby and the Central Province, resulting in 195 arrests and 11 convictions; that is, only 1 in 200 of reported cases resulted in a conviction. Given how few women seek help from police, this suggests only a tiny proportion of perpetrators of violence are arrested or successfully prosecuted. Even seemingly clear-cut cases can end without a conviction. For example, on 3 September 2021, in Mt Hagen, following the murder of a 31-year-old woman, three men were released from prison following a magistrate dismissing all charges. This was despite the fact that, according to media reports, police found the deceased woman’s body wrapped in a tarpaulin in the back of her husband’s vehicle at a police checkpoint, with the other two co-accused men present, and the husband confessed to the murder. The men were re-arrested following public outcry.
FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Levels of GBV by police officers themselves are high. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. However, the RPNGC has made some progress in recent years, establishing Family and Sexual Violence Units (FSVU) in every province. Sources told DFAT FSVUs represent progress in the policing of GBV, especially with regard to the willingness to investigate and make arrests, and in their connectedness to other services. However, there are not enough FSVUs to respond adequately to the scale of the problem. There are only 106 FSVU officers across the country and at the time of publication, there is a single FSVU officer in Tari, capital of the Highlands province of Hela, to cover the whole province (population of around 250,000). FSVU officers are typically subject to the same resource constraints as the rest of the RPNGC.
In September 2013, PNG’s parliament unanimously passed the Family Protection Act (2013). It makes provision for interim protection orders (IPOs) and longer-term protection orders (POs), which forbid contact of the person seeking the order by a spouse, ex-spouse or family member. In-country sources told DFAT that this is a reasonable framework for a justice sector response to GBV, but suggest its implementation remains weak. IPOs can be issued by Village Courts, unlike POs, which must be issued by District Courts. While IPOs reportedly make a positive difference to perceived safety of FSV survivors, sources suggest they are not presently offering women in PNG much protection. Only about 1,000 such orders are issued per year, which is not enough given there are estimated to be 1.5 million acts of GBV in PNG each year. Furthermore, sources report the RPNGC typically lacks the inclination and resources to enforce such orders. That said, breaches of IPOs have reportedly been prosecuted upon occasion and offenders even jailed in several instances in Milne Bay province. Amendments to the Family Protection Act (2013) were passed in January 2022, which increased the penalties for breaching an IPO or PO, created an aggravated domestic violence offence and created an ‘Urgent Notice’ scheme.
Sources report a significant lack of services for people requiring assistance after suffering family violence. There are now 22 Family Support Centres (FSCs) across the country (one in each province), typically attached to a general hospital to provide health services for GBV survivors. But while the FSC model is an advance for GBV health responses, their services are insufficient. Each centre tends to have 1-2 staff, primarily nurses or social workers, rather than doctors, and receives between 30-100 GBV referrals per month. FSCs usually charge somewhere in the region of PGK 20 (about AUD 8 dollars) for services and/or medical reports. These reports are often used for family compensation negotiations rather than police investigations – and it is normally the families of the survivors who benefit from such compensation rather than the survivor herself.
While women’s refuges exist in PNG, they are insufficient for the level of GBV that exists. Sources report that Port Moresby, a city of 800,000 people, has only six safe houses for women suffering GBV, open to the public, and mostly run by faith-based organisations. Some of these safe houses have as few as two rooms, one for the survivor and one for a carer, while others can accommodate up to 10 survivors in a shared room. The situation for abused children is even tighter, with very few safe houses able to accommodate unaccompanied children.
The Tribunal accepts that the applicant is a member of a particular social group, namely “women in Papua New Guinea”. The Tribunal considers that the group “women in Papua New Guinea” is identifiable by the characteristics of gender and nationality, and that these characteristics or attributes are not a shared fear of persecution for the purposes of s 5L of the Act. The Tribunal accepts that the harm the applicant fears is for the essential and significant reason of her membership of this particular social group, and that it involves systemic and discriminatory conduct for the purposes of s 5J(1)(a) and s 5J(4) of the Act. In this regard, the DFAT Report acknowledges that gender-based violence against women is very common in Papua New Guinea, and amongst the most common in the world.
The Tribunal finds that there are no reasonable steps the applicant could take to modify her behaviour to avoid the threat of serious harm for the purposes of s 5J(3) of the Act.
Given the information contained in the DFAT Report and the entirety of the applicant’s personal circumstances, the Tribunal is satisfied that the persecution feared by the applicant applies to all areas of Papua New Guinea for the purposes of s 5(1)(c) of the Act. As discussed above, it appears that [Partner A] was able to find out the applicant’s address and telephone number even after she relocated to Australia. This suggests that he would be able to locate her anywhere throughout PNG.
Further, the Tribunal is not satisfied that the applicant would be able to access effective protection from the harm for the purposes of s 5J(2) of the Act. In this regard, the Tribunal notes that the DFAT Report indicates that state protection against gender-based violence is “especially lacking”, and that the police and prosecutors rarely pursue criminal charges against perpetrators. Further, gender-based violence is seen as a private matter in which the state should not intervene. The applicant’s own experience of the police not taking action in response to her complaints is consistent with this information.
There is no evidence to suggest that the applicant has a right to enter and reside in any other country for the purposes of s 36(3) of the Act.
CONCLUSIONS
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).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the third named applicant is a member of the same family unit as the applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the third named applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
However, the Tribunal finds that the second named applicant is approximately [age] years of age, no longer lives in the same household as the applicant and is not dependent upon her. In these circumstances, the Tribunal is not satisfied that the second named 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 second named applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
(i)the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
The Tribunal affirms the decision not to grant the second named applicant a protection visa.
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.
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