2307541 (Refugee)

2307541 (Refugee) [2023] AATA 3595 (15 August 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Ling (Abby) Jiang
CASE NUMBER:  2307541
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE OF DECISION:  15 August 2023
DATE CORRIGENDUM
SIGNED:25 September 2023
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:
1)In the third line of paragraph 22, ‘…the applicant was returned to Fiji he would…’ should be ‘…the applicant was returned to PNG he would…’.
2)In the fifth line of paragraph 22, ‘…being removed from Australia to Fiji…’ should be ‘…being removed from Australia to PNG…’.
3)In the fifth line of paragraph 37, ‘…was returned to Fiji on account…’ should be ‘…was returned to PNG on account…’.

David James
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Ling (Abby) Jiang
CASE NUMBER:  2307541
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:15 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 August 2023 at 12:21pm
CATCHWORDS
REFUGEE – Protection Visa –Papua New Guinea – they rely upon their mother – applicant’s mother has a well-founded fear of persecution in PNG – applicant’s primary carer – membership of the particular social group – female children in PNG without family support and a male protector – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 65, 499
Migration Regulations 1994, r 2.08, Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 May 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old child and was born in Australia to citizens of Papua New Guinea (PNG), both of whom have made application for protection visas. The applicant’s parents are now separated after the applicant’s mother was granted a Domestic and Family Violence protection order against her husband, the applicant’s father. The applicant has and continues to be cared for by her mother and is dependent upon her mother. The applicant has never left Australia.
The applicant’s mother, a citizen of PNG made application for a protection visa on 6 October 2017 which was later refused by a delegate of the Department of Home Affairs (Department) on 8 May 2019.
The applicant’s mother filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 27 May 2019. The applicant’s mother provided a copy of the delegate’s decision with her application for review.
On 27 January 2022, the Department became aware that the applicant was affected by Reg 2.08 of the Migration Regulations 1994 (application by Newborn Child) and wrote to the applicant requesting the applicant submit an application for a protection visa.
The applicant’s mother subsequently submitted an application for a protection visa on behalf of the applicant on 16 February 2022 and provided claims on behalf of the applicant. The applicant’s claims for protection are (in summary) that:
·the applicant was born in Australia, they are unable to live in PNG was they rely upon their mother; and
·the applicant’s mother cannot return to PNG as she will face harm from PNG tribes and her partner has physically abused and threatened her.
The applicant did not advance any claims of their own.
As noted above, on 15 May 2023 the delegate refused to grant the applicant a protection visa.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 30 May 2023. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision with her application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
On 30 May 2023 the Tribunal remitted the matter relating to the applicant’s mother (Department reference [deleted]; Tribunal Case Number 1913244) for reconsideration with the direction that the applicant’s mother satisfies s 36(2)(a) of the Act.
On 25 June 2023 a differently constituted Tribunal remitted the matter relating to the applicant’s father (Department reference [deleted]; Tribunal Case Number 1921574) for reconsideration with the direction that the applicant’s father satisfies s 36(2)(a) of the Act.
The applicant was represented in relation to the review by the Refugee and Immigration Legal Service (RAILS).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
In this regard, the Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility; and that a person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
According to the protection visa application, the applicant claims to be a citizen of PNG and provided a copy of their Birth Certificate to the Department. Based on this material the Tribunal finds that the applicant is who they say they are, and a national of PNG. PNG is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Issues
The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection which include (but is not limited to) the following documents which have been considered by the Tribunal:
·applicant’s protection visa application;
·applicant’s birth certificate;
·applicant’s application for review and attached protection visa decision record;
·applicant’s representative’s written submissions of 7 June 2023 and the attached decision of the Tribunal as to the applicant’s mother’s matter; refer to paragraph 10 above; and
·applicant’s representative’s email to the Tribunal informing the Tribunal that the applicant’s mother had recently been requested to complete a health examination for her protection visa and requesting the Tribunal make a favourable decision the papers immediately remitting this application under review to the Department.
Claims for protection
The applicant claims are outlined (in summary) above at paragraph 6.
Delegate’s decision
The delegate’s decision of 15 May 2019 to refuse the protection visa was made on the information before the delegate. The delegate found that as the applicant had not raised any claims of their own and that at that time the applicant was deemed to have been included in their father’s protection visa application by operation of Reg 2.08 of the Migration Regulations 1994 and as the applicant’s father’s application had been refused there was no credible evidence or information before the delegate to indicate or demonstrate that the applicant fears harm if returned to PNG. The delegate was therefore not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
Country information
The Tribunal has taken into account the DFAT Country Information Report Papua New Guinea, 6 September 2022, as relevant, including the information under the heading of Under the heading of ‘Women’ at 3.17 to 3.25 where it is reported at 3.19 to 3.20 and at 3.22 and 3.25 that:
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…
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…
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.
And under the heading of ‘Police’ at 5.3 to 5.6 where at 5.3 and 5.6 it is reported that:
The Royal Papua New Guinea Constabulary (RPNGC) is the national police force responsible for the investigation of crime and maintaining internal security in all regions of the country. At the time of independence in 1975, police services were estimated to only cover around 10 per cent of the country’s total land area and 40 per cent of the population. Since then, the size of the RPNGC has increased by only 30 per cent, while the overall population has more than quadrupled. In 2022, the strength of the RPNGC is approximately 5,500 personnel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC…
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.

Human Rights Watch in their 2021 World Report, Papua New Guinea, Events of 2020 under the heading of ‘Women’s and Girls’ Rights’ reported in part that:
PNG remains one of the most dangerous places to be a woman or girl, where violence against women and children is rampant. More than two-thirds of the women in PNG are victims of domestic violence. In June alone, there were 647 cases of domestic violence reported in Port Moresby. A 2020 academic study found that over a 19-month period, a specialist police unit set up to receive complaints of sexual violence in Boroko, Port Moresby, averaged 27 complainants per month, 90 percent of whom were female, and 74 percent of whom were under age 18.
As to ‘Children’s Rights’:
One in 13 children die each year of preventable disease and to BRCA laces is endemic. Covid-19 has put child health outcomes at risk as closures related to PNG’s pandemic response have interrupted vaccination and other health programs.
In April, schools closed down temporarily disrupting the education of 2.4 million students due to the Covid 19 pandemic, and the government, with international assistance, was still trying to return children to classes late in the year. Before the shutdown, net enrolment stood comparatively low at 74% in primary education and 32% in secondary.
And ‘Police Abuse’ it is reported in part that:
Children continue to experience brutal beatings, rape, and torture at the hands of police and other law enforcement officials.[9]
[9] Human Rights Watch, World Report 2021 – Papua New Guinea, Events of 2020 - World Report 2021: Papua New Guinea | Human Rights Watch (hrw.org)
Analysis
Tribunal notes that it has determined that the applicant’s mother who is the applicant’s primary carer has a well-founded fear of persecution in PNG because of her membership of the particular social groups (PSG) of ‘women promised in marriage’; ‘women promised in marriage where a ‘Bride price’ has been paid’ and ‘women who have left abusive partners’ in all areas of her receiving country, PNG. Additionally, the Tribunal found that the applicant’s mother could not rely upon the PNG police to provide protection to her and as such there are not effective protection measures available to the applicant’s mother from the PNG authorities.
Noting the Tribunal’s statutory objectives to be consistent in relation to its decision-making processes and the Tribunal having accepted the evidence from the applicant’s mother and the submissions made by her representative in her matter. The Tribunal finds that the applicant as the dependant child of her mother who the Tribunal found was a member of the PSG’s of ‘women promised in marriage’; ‘women promised in marriage where a ‘Bride price’ has been paid’ and ‘women who have left abusive partners’ does face a real chance of persecution involving serious harm if she was retuned to PNG.
Membership of the PSG of ‘female children in PNG without family support and a male protector’
The Tribunal having considered the provisions of s 5L of the Act which provides that a person is to be treated a member of a PSG other than that person’s family if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. And that characteristic is innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society; finds that the applicant is a member of the of ‘female children in PNG without family support and a male protector’.
Given the applicant is the dependent child of her mother, together with relevant country information as outlined above at paragraphs 32 and 33, and, the findings and determination of the Tribunal in the applicant’s mother’s matter; the Tribunal finds that the applicant does face a real chance of persecution involving serious harm in the reasonably foreseeable future if the applicant was retuned to Fiji on account of her membership of the PSG of ‘female children in PNG without family support and a male protector’.
The Tribunal finds that the applicant’s fears in this regard are well-founded.
Refugee criterion
The Tribunal, having considered all of the applicant’s claims both individually and cumulatively, does accept that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of her membership of the particular social group of ‘female children in PNG without family support and a male protector’ in all areas of her receiving country, PNG: s 5J(1)(c). The Tribunal finds on the evidence before it that the applicant in this regard cannot rely upon the PNG police to provide protection to her and as such there are not effective protection measures available to the applicant from the PNG authorities: s 5J(2).
Therefore, the Tribunal finds that the applicants’ fears of persecution arising from her membership of the particular social group of ‘female children in PNG without family support and a male protector’ are well-founded as required by s 5J of the Act, and therefore, the applicant is refugee within the definition of s 5H of the Act.
Having found that the applicant is a refugee the Tribunal has also considered whether the applicant haa a right to enter and reside in another country other than Australia. The Tribunal finds that the applicant does not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies
s 36(2)(a) of the Migration Act.
David James
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3595

15 August 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice