2315029 (Refugee)

2315029 (Refugee) [2024] AATA 2427 (13 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Kathryn Maile Keki
CASE NUMBER:  2315029
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Khanh Hoang
DATE:13 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a).

Statement made on 13 March 2024 at 4:38pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – fear of harm from rival clan wanting to take over family land – family members, including father and brother, killed by sorcery and witchcraft and houses burned down – relocation to small city – previous returns before father’s and brother’s death and recent increases in violence – links to Australia and perceived wealth – mother granted protection on similar claims – country information and academic articles – land, clans and violence – from Western perspective, no evidence of sorcery – applicant’s cultural background and prevailing cultural norms – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
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 6 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Papua New Guinea (PNG), applied for the visa on 28 April 2020.
On 4 December 2023, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 16 January 2024. The applicant sought an adjournment of the hearing, as his legal representative was not available after the Christmas break until 22 January 2024. The hearing was adjourned until 1 February 2024. On 22 January 2024, the applicant requested a further adjournment to allow his representative to obtain under Freedom of Information laws a decision of the Department relating to his mother’s protection visa application, which contained similar claims and resulted in a positive determination for his mother. In the representative’s view, the applicant’s mother’s decision would support the applicant’s claims and assist the Tribunal. A further adjournment was granted.
The applicant appeared before the Tribunal on 1 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother [Ms A] and the applicant’s sister [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tok Pisin and English languages.
The applicant was represented in relation to the review.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee or complementary protection criterion. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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–5LA, 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.
The applicant’s identity and receiving country
Based on a copy of the applicant’s passport available on the Department’s file, and in the absence of any other evidence to the contrary, I find that PNG is the applicant’s country of nationality and his receiving country for the purposes of refugee and complementary protection assessments.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant’s claims for protection were summarised in the delegate’s decision as follows:
·The applicant left PNG because a clan in his village wants to take over his family land. They are attempting to kill his family gradually through witchcraft and sorcery so that they can take over the land.
·They have killed 12 of his family members over the years along with his father and brother more recently through sorcery and witchcraft. His father, [Mr C], died in 2017 and his brother, [Mr D], died in 2019.
·The applicant fears he will be subjected to sorcery and witchcraft like his family members if he returns to PNG.
·He didn’t relocate because wherever he goes, they will follow him, and he doesn’t have any family living in other parts of PNG.
·This clan knows he has family in Australia. They think the applicant’s family will give him money and guns to take revenge on them. That’s why they want to kill the applicant.
·His aunty was the first one to die.
·His sister, [Ms B], moved the applicant and his family to [Town 1] from their village. His sister does not want them to live in the village because they will die.
·The clan was jealous of the applicant’s family travelling to Australia.
·His sisters in Australia were scared to return to PNG for their father’s and brother’s funerals.
·His mother fears she will be the next one to die. She is scared of losing the applicant and consequently has trouble sleeping at night when he is not home.
·In 2019, there was a big fight in the village. His clan’s house was burnt down, and they have since relocated to other villages.
·The applicant’s mother knows people from the village who practise witchcraft and sorcery.
·She has seen them around where they live in [Town 1]. They try to protect each other however they can’t live like that forever. PNG is not safe for the applicant or his mother.
The applicant provided the following documentary evidence to the Department in support of his claims:
·Photos of his family in PNG, deceased family relatives and a burnt vehicle from tribal violence.
·Letters of support from the applicant’s sister and nephew.
The applicant attended an interview with the Department on 14 August 2023.
The delegate accepted that the applicant and his family relocated from [Town 2] to the outskirts of [Town 1] in [Year] due to tribal unrest and family property disputes and that the family’s land remains in dispute with other clans and extended family members. The delegate accepted that there have been intermittent tribal clashes in the applicant’s home district in the past and that there was significant tribal conflict in 2019. The delegate also accepted that many of the applicant’s relatives are deceased due to past tribal violence and natural causes, and that his brother and father passed away in 2017 and 2019, respectively. The delegate also accepted that there is some prevailing community jealousy due to the applicant’s familial links to Australia.
The delegate did not accept that the applicant’s house was intentionally burnt down in 2019 or that members of his family were killed by sorcery and witchcraft. The delegate did not accept that the applicant was being pursued by his enemies in [Town 1] or that his enemies think his sisters in Australia will help him seek revenge on them in PNG.
The delegate found that the applicant’s claims do not relate to any of the reasons in s 5J(1)(a) and therefore the applicant is not a refugee as defined in s 5H(1) of the Act.
In relation to complementary protection, the delegate found that the claimed harm constitutes ‘significant harm’ under s 36(2A). The delegate found that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer ‘significant harm’. However, the delegate found that the applicant could reasonably be expected to relocate to Port Moresby where there would not be a real risk that he would suffer significant harm. The delegate considered that the applicant had ‘demonstrated a degree of resilience in living overseas in Australia and demonstrated his ability to establish himself in Australia, a country which is very different to his own both culturally and linguistically.’[1] The delegate considered that relocation to Port Moresby was reasonable because, amongst other things, the applicant ‘would have the necessary skills to build a new life for himself in Port Moresby’.[2]
[1] Delegate’s decision record, p 10.
[2] Delegate’s decision record, p 11.
Evidence before the Tribunal
Pre-hearing submissions
On 21 February 2024, the applicant submitted the following pieces of documentary evidence to the Tribunal:
·A copy of the applicant’s passport;
·A copy of the Department’s notification letter in respect of the applicant’s application for protection, dated 6 September 2023;
·A copy of the decision record in respect of the applicant’s application for a protection visa, dated 6 September 2023;
·Acknowledgement of application for review by the Tribunal, dated 26 September 2023;
·Notification of a grant of a protection visa to [Ms A], dated 9 September 2022;
·Decision record for the grant of a protection visa to [Ms A], dated 9 September 2022;
·Photos of family members with weapons and a burnt-out vehicle (previously supplied to the Department);
·Photos of deceased brother ([Mr D]) and father ([Mr C]) (previously supplied to the Department);
·Statutory declaration of [Mr E], dated 24 January 2024;
·Statutory declaration of [Elder F], dated 19 January 2024;
·Statutory declaration of [Ms B], dated 21 February 2024;
·Statutory declaration of [Ms A], dated 21 February 2024; and
·Academic articles on the topic of witchcraft and sorcery in PNG titled Sorcery and Witchcraft in Papua New Guinea: Problems in Definition and Developing Insecurity: Sorcery, Witchcraft and Melanesian Economic Development.
Post-hearing submissions
The applicant submitted the following pieces of documentary evidence post-hearing:
·A further statutory declaration from the applicant, dated 4 March 2024;
·An article from The Guardian, titled ‘Tribal Conflict worsens in Papua New Guinea as firearms rewrite the rules’; and
·An article from the Australian Institute of International Affairs, titled ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’.
Applicant’s background
The applicant is now [Age] years old. He was born [Town 2] and he grew up in [Village]. After he finished school, the applicant worked as [an Occupation 1] and then as [an Occupation 2]. He worked until 2010 for various [Occupation 2] companies, after which he was not formally employed but continued informal work in [Occupation 2].
The applicant’s family consists of his father (deceased), mother (who was granted a protection visa in Australia in 2023), [sisters] who reside in Australia and his [brother, [Mr D] (deceased). He has [biological children] who are living in [Town 1], and [adopted children] who are his late brother’s children. The applicant knows that his children reside in [Town 1] but he does not know their exact whereabouts.
He has travelled to Australia on four occasions: in 2006, 2010, 2011 and most recently he arrived in Australia [in] February 2020, along with this mother. The applicant lodged his protection visa application himself and he told me that he understood what was in his protection visa application.
Applicant’s claims
At the hearing, the applicant gave evidence that was largely consistent with the version of events set out in his statutory declaration and during his interview with the Department.
The applicant is from [Clan 1], being one of seven different clans within [Village]. The other clans in [Village] include [Clans 2-7].[3]
[3] Applicant’s statutory declaration, dated 4 March 2023.
He told the Tribunal that his clan has two villages on either side of the mountain, and he estimates that altogether the clan contains 70 or 80 people, although he cannot be sure of the exact number. The applicant claimed that his grandfather cultivated land near the village and settled there and brought other people along to help him who were then brought into the clan. His grandfather gave portions of the land to those who helped him as well as those in his family, including the applicant’s father. The applicant stated that he inherited four pieces of land that he and his family used for growing plants and coffee while his family were living there.
The applicant claimed that disputes in relation to the land began around [Year]. He stated that the people whom his grandfather had brought into the tribe were jealous that his family were given bigger portions of land and wanted to take their land over. The applicant claimed that the first of his family to die was his aunty, who died in around [Year]. The applicant’s family suspects that his aunty died as a result of sorcery undertaken by the rival clan. The applicant’s [sister], [Ms B], relocated the immediate family to [Town 1] as she did not want them harmed. The rest of the [family], including his father’s brothers, remained in the village.
I asked the applicant what has happened to the land since he left and the applicant stated that while the land is still there, he does not know whether or how it is being used now. However, he stated that legally and traditionally the land still belongs to him.
The applicant claimed that his father died in 2017 in [Town 1]. He stated that there was a man who lived next to them whom his mother would call ‘son’. This person asked his father to come over to play cards one day. The applicant claimed that something happened and when his father returned from visiting his neighbour he fell ill and passed away some days later. His father’s body was transported back to [Village]. The applicant stated that they did not obtain a death certificate for his father. The applicant’s brother returned to the village to put a headstone on his father’s grave. The applicant claimed that when his brother returned to [Town 1], he was sick for 11 months before he passed away in April 2019. The applicant took his brother to the hospital and to a ‘witch doctor’, who told him that people from his village had done something to his brother and that he would die as a result.
I asked the applicant to explain what sorcery and witchcraft meant in his culture. The applicant stated that sorcery is done in private. He provided an example that people could pay bribes to others to take a person from where they are staying, smash their bones and tell them to wake up and go to their house. He believed that something similar happened to his father and brother. I asked the applicant whether his clan had ever accused the rival clan or clans of sorcery or witchcraft, and the applicant stated while this was in the minds of his clan members, they never levelled accusations at the rival clan.
The applicant stated that there was a violent clash between his clan and the rival clan in 2019. The applicant was not present during the conflict as he was residing in [Town 1], although he heard of what had happened through others who passed through [Town 1]. He stated that the conflict erupted when rival clan members were caught spying on his family members and were chased away. The rival clan returned to burn down all the houses that belonged to the applicant’s clan and his clan retaliated. During the fighting, two members of the rival clan were killed. After the violent clash members of this clan dispersed throughout PNG. The applicant stated that the instigators of violence were the ‘younger people’, being children of the people to whom his grandfather had given some portions of land. Those people have married and have children and want to take over his land so that they can use it to plant food and use the land for their own purposes.
This violent clash gave rise to attempts to resolve the dispute through a land mediation process. The applicant gave evidence that through the mediation process, a peace deal had been brokered through a councillor and pastor, and although the rival clan agreed publicly, they continued to have hidden motives. The applicant’s evidence in this regard is supported by the statutory declaration of [Mr E], who is the applicant’s distant cousin from his mother’s side.

The applicant stated that he was informed by members of other clans in [Village] who passed through [Town 1] that the rival clan want to kill him because they think that his sisters in Australia will send him money, allowing him to purchase guns and take revenge on them. If he returns to PNG, the rival clan will seek to pre-emptively strike first and harm him. The applicant stated that while he was living in [Town 1], members of the rival clan came looking for him and asked people where his house was, but they were chased away by street boys that were looking out for him. When I asked how many times this happened, the applicant stated that it happened twice but he could not remember exactly when. The applicant stated that when he went to the councillor and the local police, he was informed that he needed evidence and that the police usually do not protect people who lived in the settlements like he did. He stated that his mother used to go to the nearby market, and she saw people from his village who she knew to practise sorcery.
I asked the applicant why he had not applied for protection on his previous visits to Australia. The applicant confirmed that despite living in [Town 1] from [Year] without experiencing any harm, his fears were escalated after the deaths of his father and brother in 2017 and 2019 and the violent clash in his village. He stated that he generally kept a low profile in [Town 1] and did not go out at night-time.
The applicant fears that if he is returned to PNG he will be killed or harmed by the rival clan in the same way his brother and father were. He stated that the rival clan has members scattered around PNG and that it would be difficult for him to relocate elsewhere in PNG because he has no family left. I asked why he could not relocate to Port Moresby, and the applicant replied that he would not be safe there. One of his nieces was a student in Port Moresby and she was also a victim of sorcery. He stated that the rival clan will harm him due to his membership of the clan, because he owns the land and because of their perception that he has the ability to buy guns and seek revenge on them. He stated that the rival clan will bribe people to come and inflict sorcery on him.
Witness evidence
I took witness evidence from the applicant’s sister, [Ms B]. She confirmed that the applicant’s grandfather had ‘adopted’ others into the clans, and to whom he gave portions of land. However, her clan has more land than the rival clan in the village who wanted to take over their land. The witness confirmed that she settled her family in [Town 1] in around [Year] and she moved to Australia in [Year], as she was married to an Australian man.
She stated that while nothing had happened to her family while she was living in [Town 1], over the years 10 other members (excluding her father and brother) had died. In her statutory declaration, she stated that she did not return to PNG for the funerals of her father and brother due to fear of harm from the rival clan. She was of the view that the rival clan thinks that she is rich and capable of procuring guns and she feared that she would be targeted for supporting her family.
The applicant’s mother gave evidence that she believed that the rival clan members killed her husband in [Town 1] over the land, and that they had also killed her sister for the same reason. I asked how she knew that people she saw in [Town 1] practised sorcery. She stated that she knew the faces of these people well as they were related to the death of her sister-in-law and she could recognise them. She stated that she tried to protect the applicant as much as she could, but she feared that, after witnessing what had happened to her husband, the same thing would happen to the applicant and that his safety was not guaranteed.
Representative’s submissions
Post-hearing, the applicant’s representative submitted that the applicant’s mother was granted a protection visa on the basis that she is a widowed woman in PNG. The representative submitted that the threat faced by the applicant and his mother was the same, and that he is not any less vulnerable on account of his membership of the clan. She submitted, in response to the Tribunal’s concern as to why the other clan would want to target the applicant if the land was unattended, that the applicant continues to have the inherent right to claim the land under custom. While his risk is heightened because the other clan may perceive that he will be funded by his sisters to take revenge on them, the core of his fear arises from his membership of the tribe and the fact that he owns the land in dispute.
The representative also stated that the applicant had submitted academic articles in relation to sorcery and witchcraft in PNG. These were intended to demonstrate the widespread belief in sorcery and witchcraft in PNG and that they can encompass calculated acts of physical violence.
COUNTRY INFORMATION
I have considered the following country information relevant to the applicant’s claims.
According to DFAT’s 2022 Country Information Report on PNG, under the heading ‘Inter‑group violence’ it is reported that:[4]
2.27 Tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.
2.28 Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced.
2.29 Land disputes are a common catalyst for unrest in PNG. Ninety-seven per cent of land in PNG is customarily held. Conflict typically escalates from territorial disputes into violence, with some incidents being ‘payback’ for previous incidents. While inter‑tribal conflict has historically occurred, especially in the Highlands region, observers suggest that such violence has become markedly worse in the last few years due to the increasing prevalence of high-powered firearms, the willingness to target the elderly, women and children, and the fact that conflict is less governed by customary law (which served to limit the extent and targets of violence) than in the past. Inter-tribal fighting often results in the destruction of communal property and services (such as health clinics, schools and transport infrastructure) and in substantial numbers of internally displaced persons. Sources report national and provincial governments are disinclined to rebuild after such destruction.
2.30 Observers have suggested that increased fighting in the Highlands should be viewed as a resort to self-help through violent means, in the absence of effective government alternatives for managing disputes peacefully. Police capacity and willingness to prevent and investigate tribal fighting is typically limited (see Police). In Hela province, which has a population of 400,000 people, there are just 83 Royal Papua New Guinea Constabulary (RPNGC) officers, as noted by Prime Minister Marape in response to the July 2019 massacre. Often the RPNGC are outnumbered and outgunned by warring groups and can only intervene at significant personal risk.
2.31 Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there.
2.32 DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG.
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 6 September 2022, p 12.
Under the heading ‘Sorcery and witchcraft accusations’ it is reported that:[5]
3.32 There is a strong belief throughout PNG in the power of the supernatural, in particular the ability of ‘witches’ or ‘sorcerers’ to use magic. This belief is prevalent in both rural and urban areas and is also typically shared by PNG elites. Those accused of sorcery are often subject to harassment and violence, known as Sorcery Accusation Related Violence (SARV). Sources estimate that six people are killed and a further 23 suffer serious harm, including permanent injury, as a result of SARV each month. In addition, sometimes whole families of SARV victims need to move out of their communities, potentially facing difficult long-term displacement (see also Internal Relocation).
3.33 In PNG, anyone can be accused of sorcery. Researchers report that children and the elderly, blood-related family members, uneducated, previously accused, well‑educated professionals and leaders and marginalised people have all been targets. Both men and women can be accused of sorcery, though accusations against women and children are more likely to result in violence and significant injury. In some places, such as Bougainville, accused sorcerers were historically men while in other places, like Enga, they were predominantly women. However, the nature of SARV has changed across PNG in recent years, becoming more prevalent and more violent, and spreading to provinces where sorcery beliefs were not historically widely held.
3.34 The proliferation of sorcery accusations has been partly attributed to modern social media and communication, as well as entertainment products such as the Harry Potter series, in a population inclined to accept supernatural explanations. The vast majority of accusations (82 per cent, according to an ANU estimate) involve a pre-existing conflict or tension between the accused and the accuser – often over land or money and goods. Other accusations involve finding a scapegoat for misfortune, such as the death (by HIV, for example) of a relative of the accuser. Such scapegoats will typically be less powerful, more isolated individuals, such as widows or single women, without the backing of male relatives.
3.35 In nearly all cases (99 per cent according to the ANU), there was an immediate trigger incident preceding an accusation, such as death, sickness or, less commonly, economic misfortune. Researchers identified two further predictors of violence following accusations: the level of precision (that is, the detail or specificity in the accusation) made against the accused individual and whether or not it involved an allegation that the accused had caused death.
3.36 In the ANU study, only a fifth of victims lodged complaints in relation to SARV, and, at the time of the study’s publication (2021), charges had been laid in only four cases from more than 1,000 incidents. Across the country, there are generally fewer than 10 offenders convicted each year for SARV, despite the high frequency of cases and the often very public nature of their violence. Police responses to SARV are limited by capacity limitations of the RPNGC (see Police). However, police officers may also believe the sorcery accusations or otherwise be sympathetic to the sorcery accuser. On occasion, police may face significant community opposition with regard to a SARV response and may have to contend with a large number of potential defendants (entire communities may participate in SARV violence).
3.37 The Government of PNG endorsed a Sorcery and Witchcraft Accusation National Action Plan in 2015, aimed at reducing sorcery-related violence. The Plan, with an initial budget of PGK3 million (AUD 1.3 million) focuses on five strategic areas: care and counselling; advocacy and communications; legal and protection; the health sector; and research. However, the Plan and its coordinating mechanism, the Technical Committee Against Sorcery Accusation Related Violence were not fully implemented. A review of the Plan is currently ongoing with the intent to establish funding and reinvigorate implementation. In late February 2022, PNG amended its Criminal Code to insert provisions criminalising acting as or procuring the services of a ‘Glasman’ or ‘Glasmeri’ – seers who claim to discern those responsible for sorcery, usually for money. The amendments included criminalising the accusation of sorcery, but do not refer to Sorcery Accusation Related Violence.
3.38 DFAT assesses that those accused of sorcery in PNG face a high risk of societal discrimination and violence. This discrimination may include being illegally detained, beaten or tortured, having their possessions stolen, being forced to leave their communities, or being killed.
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 6 September 2022, pp 18–19.
Under the heading ‘Police’ it is reported that:[6]
5.3 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.
5.4 Alleged abuses of power and the use of unnecessary violence by police have been consistently highlighted by international human rights bodies. In March 2022, the 18-year-old son of a police officer was beaten severely by RPNGC officers in Port Moresby and driven about unconscious in the back of their van for hours before he was released to his family. As at the time of publication, there were no reported consequences for the officers responsible for the bashing. In April 2021, the US Department of State reported that 14 police officers had been suspended pending investigations into their alleged involvement in murders reported in Central, Western, and New Ireland Provinces in the previous two weeks.
5.5 The effectiveness of the RPNGC is severely limited by resource and staffing constraints. The police are routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. Sources reported that a trial in 2022 in Central Province for serious sexual offences against a child only went ahead because of NGO support in the form of petrol funding for the police and necessary accommodation provided to the complainant and her mother. One close observer of the RPNGC suggested that, while the full complement of police stood at around 5,500, only around one quarter of these were fully effective as police officers. RPNGC officers endure poor working and living conditions, including low remuneration; frequently need to assert themselves in violent environments, often without weapons or protection; have family/clan obligations to meet; and are generally poorly trained, particularly on human rights. Some police are also disinclined to act in response to some GBV, SARV or tribal fighting offences due to sympathy for the alleged perpetrator(s).
5.6 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.
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 6 September 2022, pp 22–23.
A 2022 report of the Australian Institute of International Affairs notes the following with respect to the changing nature of tribal violence:[7]
[7] Andrew Kobylinski, Australian Institute of International Affairs, “Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea”, available at < fights are brutal. The aim is simple – to destroy the enemy, mentally and physically. Fights generally take place in or around remote villages without access to medical assistance or law enforcement. By taking over the enemy’s land, the occupying party is better positioned during future peace and compensation negotiations. Unfortunately, the civilians who do not participate in the fights are the ones who bear the brunt of the violence. Many are wounded or killed during these intense battles. The Highlands’ limited access to healthcare only adds to the anguish. Regrettably, at times sexual violence occurs during these fights. On top of immediate needs, the impact of violence remains even after the fighting has stopped — fleeing villagers are often displaced for months or even years.
The changing nature of tribal violence
While tribal fighting is not new to PNG or the Highlands, several factors have made the situation worse in the last 20 years.
For one, more than 50 percent of the nation’s population is under the age of 24. In the ICRC’s experience, the Highlands have an even higher proportion of youth. Few opportunities and limited employment in the region push many youths towards violence. Further, as PNG modernises, traditional cultural and tribal structures are rapidly changing. With more outside communications, traditional elders and leaders are losing their stabilising influence. Finally, the introduction of modern weapons and methods of warfare have led to more brutal outcomes.
In the Highlands, clans take up arms against each other to defend their pride and interests. The clan’s decision to escalate in response to a grievance is one made out of kinship and solidarity. The cause of a fight ranges from complex electoral outcomes or generational land disputes, to the simple souring of relationships, or a misunderstanding after an altercation.
Once the decision to fight is made, traditionally the man with the grievance is considered ‘the owner of the fight’ and the entire clan is expected to support him. If the grievance is held by a woman, often an elder male relative would be “the owner of the fight” on her behalf. He is responsible for calling the start and end of the fight. However, in recent years, ICRC has noticed a new trend — fights started by youths have done so against the advice of older clansmen and the owner of the fight, whose preference is for mediation.
Fights in the Highlands are unpredictable. Battles are short and intense but reaching a ceasefire or peace agreement can take months or years — many fights remain “frozen” with no active fighting for long stretches. Without a peace agreement in place the fight may resume at any moment. For this reason, the ICRC and the PNG Red Cross build and maintain connections with local Highland communities, enabling us to undertake neutral humanitarian action when needed.
Traditional limit in fights
Just like the Geneva Conventions, Highland communities have their own rules about what is permitted during a fight. The most consistent rule is the concept of neutrality — participants should not attack neutral people, places, buildings, or objects.
From a traditional perspective, there is broad agreement that killing ‘innocent’ people would lead to death or defeat in battle, either by incurring a generation of bad luck or becoming a target of the deceased’s spirit. Unfortunately, like in many situations of violence, in the heat of the fight these tacit rules are not always strictly followed, and communities have limited means of enforcing them.
A rule of similar importance is the principle that fighting can only take place on the lands of the clans involved in the fight. The ICRC has observed neutral clans marking their boundaries to prevent becoming involved. Rules and traditions of tribal fighting are primarily passed from father to son, or at clan meetings. However, many older community members feel that younger generations no longer respect these teachings.
Women are generally excluded from the tribe’s combat decisions. While this is not always the case, they are often expected to take small children and key possessions to the safety of relatives, or to hide until the fight is over.

According to the article by Richard Eves of the Australian National University, entitled Sorcery and Witchcraft in Papua New Guinea: Problems in Definition, the following distinction can be made between sorcery and witchcraft:[8]
Importantly, sorcery involves the purposeful actions of a person who intends to cause misfortune or harm to others (or to benefit them), and who sets about doing this through ritual means or incantations. In Papua New Guinea, a large range of techniques exist for this and these can be passed down the generations, acquired from relatives or friends, or simply purchased for cash. Probably the most common type is personal leavings sorcery, which involves the sorcerer manipulating the victim’s personal exuviae (excreta, hair, fingernails, etc.), or items which the victim has used or touched (such as a discarded betel nut shell or the soil from a footprint). After incanting a spell, the sorcerer wraps the leavings in a parcel and disposes of this in a manner according to the desired effect.
Another type is assault sorcery, in which the sorcerer uses magic to render the victim unconscious and then insert objects such as needles into the body or removes internal organs. Another form is projectile sorcery, that involves ‘shooting’ things (such as pieces of glass or wire) magically into the body of the victim. Other forms of sorcery considered particularly powerful use ‘spirits’ of either the dead or the living to attack the victim. Some of the newer types of sorcery do not use any substances but work simply by uttering spells. Some forms of sorcery actually involve the use of poison or other toxic substances (such as battery acid or herbicide), which are either put on to arrows used in conflicts or added to food or water or other items that are consumed.
These descriptions make it clear that for those who believe in the efficacy of sorcery in Papua New Guinea, it is a set of practices that can be learnt and is something a person sets out to do. Witchcraft, on the other hand, does not comprise a set of practices that can be learnt. Rather, it is believed to be a form of possession by the ‘witch substance’ or creature, which resides in the body (abdomen, chest, scrotum, vagina, womb, head, armpit, etc.) and takes control of the possessed person.
[8] Richard Eves, Sorcery and Witchcraft in Papua New Guinea: Problems in Definition, In Brief 2013/12, Australian National University Society & Governance in Melanesia Program, available at <>
In a discussion paper titled Developing Insecurity: Sorcery, Witchcraft and Melanesian Economic Development, Eves and Forsyth argue that:[9]
From a Western, rationalist perspective, sorcery and witchcraft beliefs seem fanciful and not to be taken seriously. However, such beliefs lead people to act in ways that have real and material consequences for other human beings — sometimes with dreadful consequences. As we have explained, sorcery and witchcraft beliefs also lead people to moderate their own behaviour and sometimes to curtail activities that could improve their livelihoods. This has a damping effect on economic development and traps people in cycles of poverty and material insecurity.
…
Some forms of sorcery are not strictly magical but involve the actual use of poison or other toxic substances (such as battery acid or herbicide), which are put onto arrows used in conflicts or added to food, water, or other items to be consumed (Bowden 1987:186; Sillitoe 1987:123), though whether in sufficient quantities to kill is debatable.
FINDINGS AND REASONS
[9] Richard Eves and Miranda Forsyth, Developing Insecurity: Sorcery, Witchcraft and Melanesian Economic Development, SGGM Discussion Paper 2015/7, pp 9–11.
Refugee findings
Credibility
In determining whether an applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by the applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[10]
[10] MIMA v Rajalingam (1999) 93 FCR 220.
However, the Tribunal is not required to uncritically accept all, or any, of the claims made by an applicant[11] or have rebutting evidence available to it before it can find that a particular fact asserted by an applicant has not been made out.[12] The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13]
Findings of fact
[11] SZLVZ v MIAC [2008] FCA 1816 at [24], per Middleton J (SZLVZ v MIAC) at [25].
[12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348, per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
[13] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
I found the applicant to be a generally credible witness at hearing. As a starting point, based on the evidence before me, I accept, as the delegate did, the following aspects of the applicant’s claims:
·That the applicant and his family relocated from [Town 2] to the outskirts of [Town 1] in [Year] due to tribal unrest and a family property dispute;
·That the family’s land remains in dispute with another clan and extended family members;
·That there have been intermittent tribal clashes in the applicant’s home district in the past and that there was significant tribal conflict in 2019;
·That many of the applicant’s relatives are deceased due to past tribal violence and natural causes;
·That his brother and father passed away in 2017 and 2019, respectively; and
·That there is some prevailing community jealousy due to the applicant’s familial links to Australia.
At issue is whether: the applicant’s brother and father were killed by sorcery and witchcraft at the hands of rival clan members; the houses that belonged to the applicant’s clan members were burnt down in 2019 by the rival clan; and the applicant was pursued by rival clan members in [Town 1].
The delegate found that there was no concrete evidence that the applicant’s father or brother were killed by sorcery or witchcraft by members of a rival clan. I accept that, when viewed from the Western perspective, it appears reasonable to find that there is no evidence of sorcery in this case. The Cambridge Dictionary defines ‘sorcery’ as being ‘a type of magic in which spirits, especially evil ones, are used to make things happen’.[14]
[14] Cambridge Dictionary, The meaning of sorcery, available at <>
However, I am mindful of the need to consider the applicant’s claims in light of his cultural background and prevailing cultural norms in PNG. At the hearing, the applicant’s representative submitted that the applicant was not asking the Tribunal to believe in sorcery or witchcraft, which I have inferred as being the Western understanding of such. Rather, it was submitted that sorcery, as understood and explained by the applicant at hearing, includes physical elements along with a calculated intention to cause harm to a person. I have considered the academic literature referred to above which supports this understanding of sorcery in the context of PNG and other Melanesian cultures, and the distinction that can be drawn between sorcery and witchcraft. The literature not only considers purposeful action and intention to cause harm to be core elements of sorcery, but also identifies that sorcery can take many different forms, some of which include physical violence. The example of ‘sorcery’ that the applicant gave at hearing was consistent with the academic literature in this regard.
In the context of the applicant’s claims – where past and ongoing tribal disputes over the land are not in issue – I consider it plausible that the applicant’s father and brother were harmed by members of the rival clan in the manner that the applicant terms ‘sorcery’. That is, I am willing to accept that his brother and father were harmed in ways that involved forms of physical violence and an intention to inflict harm. Given the applicant’s assertions that ‘sorcery’ of this kind is done in private, I accept that he cannot be reasonably expected to provide evidence – beyond the photographic evidence of his father and brother’s deaths that he has provided – that they were killed by a rival clan. In making this finding, I have also given weight to statutory declarations from his family and others.
In relation to the claim that the houses belonging to his clan were burnt down in 2019 by the rival clan, I am willing to accept that to be the case. I have given weight to evidence contained in the statutory declarations of [Elder F] and [Mr E] about this. Although the applicant was not present during the conflict, I find it plausible that if the violent conflict resulted in the deaths of the rival clan members, their retaliation could have resulted in the burning down of houses that belonged to the applicant’s clan. The violent nature of the conflict described by the applicant at hearing is consistent with country information in this regard.
In relation to the applicant’s claims that members of the rival clan sought to harm him while he was in [Town 1], I have some concerns that the applicant could not remember exactly when the rival clan members sought to find his house. At the hearing, he stated that this occurred twice, which is inconsistent with the evidence he gave in his protection visa interview that it occurred three times. I have weighed this against the evidence given by the applicant’s mother that she witnessed members of the rival clan in [Town 1] whom she remembers were involved in the death of the applicant’s aunty. Given the relative proximity of [Town 2] to [Town 1], I consider it plausible that members of the rival clan could have been in [Town 1] and thus looking for the applicant. I do, however, find that the applicant was not physically harmed by members of the rival clan in [Town 1], although I accept that he kept a relatively low profile during his time there, including limiting going out during the night.
Does the applicant face a real risk of serious harm now or in the reasonably foreseeable future?
I note the delegate’s concern that the applicant had come to Australia and returned to PNG on 3 occasions previously before he made an application for a protection visa on his most recent trip in 2020. However, I find it plausible that the significant tribal conflict in 2019 along with the deaths of his father and brother at the hands of rial clan members heightened the applicant’s fear of returning to PNG and thus precipitating his application for a protection visa. I find that the applicant’s previous return trips from PNG to Australia in 2006, 2010, and 2011 do not detract from his fear of persecution or the level of harm feared.
The applicant submitted that he fears persecution in PNG on account of his membership of a particular social group, namely as a ‘member of the [Clan 1] clan with substantial land holdings in the Highlands region of Papua New Guinea’.[15] Having regard to ss 5L(a)–(d) of the Act, I find the [Clan 1] clan to be a particular social group. I am satisfied that membership of the [Clan 1] clan is a characteristic shared by each member of the group, and the applicant shares or is perceived as sharing that characteristic. I find that the characteristic distinguishes the applicant and the group from society at large and is not a fear of persecution in itself.
[15] Applicant’s submissions, pp 14–15.
I am satisfied that if returned to his home region in [Town 1], the applicant faces a real chance of serious harm now or in the reasonably foreseeable future from members of the rival clan, who will seek to kill or harm him in order to claim his land (s 5J(4)(b), 5J(1)(b)). While the applicant has not been harmed in the past, I note that the applicant does not have to show past persecution in order to establish a well-founded fear of being persecuted.[16] I have found above that members of his extended family, including his father and brother, have been harmed and killed by the rival clan as part of the ongoing land dispute that has stretched over two decades, and which escalated into a violent clash in 2019 in which the homes of the applicant’s clan were burnt down. While I have some concerns that the applicant does not know whether the land is currently being utilised, or indeed if it is being used by the rival clan, I accept that as a member of the [Clan 1] clan, he is the owner of the land by custom and can assert his right to this land in the future. Country information suggests that tribal fights can remain frozen for long stretches and can resume at any moment. I accept the country information that the aim of tribal warfare is to destroy the enemy physically and mentally. Having accepted the ongoing nature of the land dispute which have resulted in the deaths of his family members, I accept that there is ongoing motivation on the part of the rival clan to harm the applicant to prevent him from ever asserting his right to the land.
[16] See Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ at [192] observed that ‘[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past’.
I have also considered country information above which suggests that traditionally, tribal conflict in the Highlands is governed by traditional rules. These include that harm is not inflicted on neutral parties and that fighting should take place only on the parties’ land. This would tend to suggest that the applicant, not being present in [Village] during the 2019 conflict, should not be targeted as a neutral party. However, the information suggests that younger generations may not readily adhere to these established rules. I accept the applicant’s claims that recent harm inflicted on his father and brother were from younger people, who are less likely to adhere to these traditional rules.
Further, and having regard to his personal circumstances, I accept that the applicant’s risk is elevated by the perception held by rival clan members that he has previously travelled to Australia and has family in Australia who may be able to fund his purchase of weapons to take revenge on them. The applicant claimed that this perception may further motivate other clan members to seek to pre-emptively harm the applicant. The applicant has not suggested that he will take any measures to harm rival clan members if he were to return to PNG. However, having regard to country information that recent tribal clashes in PNG have involved the use of firearms, I accept as plausible that rival clan members might readily carry such perceptions.
I am satisfied that the applicant would be persecuted for the essential and significant reason of his membership of the [Clan 1] clan, and that he would be targeted by the rival clan members in a manner that involves systematic and discriminatory conduct (ss 5J(4)(a), (c)). I am also satisfied that the real chance of harm extends to all areas of the receiving country (s 5J(1)(c)). I am guided by country information above which suggests that the risk of harm from tribal conflict cannot necessarily be ameliorated by relocation to another part of PNG, particularly where ‘members of opposing tribes are present’. I am willing to accept the applicant’s evidence that members of the rival clans live in Port Moresby, and relocation there would not be an option for him.
I do not consider, on the country information available, that the applicant has access to effective protection measures (s 5LA). Indeed, I accept that the applicant approached the police and councillor in [Town 1], but he was not able to obtain assistance. I place weight on country information above that the police are under-resourced and unable to provide assistance in the face of continuing tribal conflicts. Lastly, I do not consider that this is a case where the applicant can be expected to modify his behaviour in order remove the real chance of persecution, as any modification would require him to conceal the innate or immutable characteristic of membership of the [Clan 1] clan (s 5J(3)).
For completeness, I have considered the representative’s submissions that the applicant’s mother was granted a protection visa by the Department, that the threat faced by the applicant and his mother is the same, and that he is not any less vulnerable on account of his membership of the clan. However, I note that his mother was granted a protection visa on the basis of her membership of a different particular social group, namely, ‘single or separated or widowed Papua New Guinean women’. As such, I reject this submission but note that it has no material impact on my assessment of the applicant’s claims.
For the reasons given above, I am satisfied that the applicant has a well-founded fear of persecution in PNG and that he is a refugee under s 5H(1). I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection findings
As I have found that the applicant meets the refugee criterion, it is not necessary for me to further consider his claims under the complementary protection criterion.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Khanh Hoang
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2427

13 March 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction