2317866 (Refugee)

2317866 (Refugee) [2024] AATA 2739 (16 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317866
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Sean Baker
DATE:16 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 May 2024 at 11:36am
CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea – manufactured later claims to bolster protection claims – no explanations for the death of his brother – tribal violence – a particular social group – young male member of his village – harm from inter-group violence – real chance of persecution is localised to his village – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a citizen of Papua New Guinea, applied for the visa on 9 September 2023. The delegate refused to grant the visa on the basis that the applicant did not identify a basis for harm on any of the nexus grounds, nor that the harm feared amounted to significant harm.
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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The applicant is a [age]-year-old man from PNG. He was born in Port Moresby but lived most of his life in PNG in [Village 1], Enga Province, PNG.
He is a Christian. He speaks reads and writes PNG Pidgin and English. He completed high school and after school he worked in the family garden.
His parents are living in [Village 2], a small village in [an area]. He is one of five; four brothers and one sister. His sister is married to a teacher and they move around. The applicant has a girlfriend in another province.
Evidence to the Department
To the department, the applicant provided a copy of his passport. In his application he said that he was born in Port Moresby but resided and attended school in [Village 1], central PNG. He completed high school at [a] secondary school.
In that application when asked why he left PNG he said that he came to Australia through the Pacific Labour Scheme to work in farming, his visa is expiring and there is no extension, which is the reason he is applying for the protection visa. His future looks bleak and he needs to work in Australia to support his family in PNG. Life there is hard and he does not believe he will get a job.
He stated he had not experienced harm in PNG. He said he had not tried to move and that moving is not an option as it is not safe to move as people are killing each other. He would not be safe there and it is very hard to find employment. Australia offers a greater opportunity.
Evidence to the Tribunal
To the Tribunal the applicant provided a copy of the delegate’s decision.
On 8 January and 11 January 2024 the applicant provided a number photos and a video which he claimed showed the eruption of violence in his village. There are several unattributed videos, one taken in a town which shows people running and then gunshots off camera. Two show dead tribespeople with other people around them moving the bodies and speaking. Many of the photos appear to be stills from youtube videos, including one video story from SBS on the eruption of violence in Karida village on 11 July 2019 (At least 22 people slaughtered in Papua New Guinea tribal violence - YouTube). Other photos appear to be a march or ceremony at Enga Wabag district in Sakarip from 6 May 2023 (Create peace ceremony at Enga Wabag District in Sakarip (youtube.com)).
We discussed these videos and photos at the hearing.
The applicant appeared before the Tribunal on 11 January 2024 to give evidence and present arguments. At that hearing the applicant claimed that he was involved in trying to have his cousin elected and faced a chance of harm on return for this reason. This is further outlined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant will be persecuted on return to PNG or, if not, whether there is a real risk he will suffer significant harm if removed from Australia to PNG. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Is there a real chance the applicant will suffer persecution on return to Papua New Guinea?
Election and tribal violence
At the hearing the applicant claimed that his cousin had tried to contest the July 2022 national election against the incumbent candidate, the applicant had been an election monitor for his cousin and for this reason the applicant would be harmed on return. He claimed that during the 2022 election the sitting member’s supporters had tried to hijack one of the election boxes and the applicant had tried to attack them, there had been an argument and a fight. I asked when the argument and fight had happened exactly, and he said before he had left to Australia in December 2022 to come on the Pacific Labour program. He said that then later they had killed his brother and now he had to fight back because this was the way in PNG.
I asked the applicant for more detail of what had happened when he had got in an argument and then a fight. The applicant said that there were five districts in his area and the sitting member was in his third term and had hijacked the boxes the last two times. They did not like the sitting member and were frustrated and they had tried to destroy the boxes so he could not hijack them. After he had come to Australia the fight had erupted and now they had to fight back.
He said that there continues to be violence as it is a chain. When he came to Australia the fight flared up and when his Pacific Labour Scheme visa was about to expire, he had called his parents and they had said it was too risky for him to return to PNG. He said that his parents had moved to stay with his grandparents.
The applicant claimed that they had killed his first and second brothers. He then clarified that only one of his brother’s had been killed; his brother, [Mr A] had been killed around three months ago. He said that this was connected with the election violence. He said that his brother had gone to attack the immediate family of the sitting member. I asked why he had done that and he said that it was because the current member was hijacking the election boxes. I confirmed that this was connected with the election in July 2022 and he said it was.
We discussed the photos and videos. I displayed these for the applicant to see. He said that the first video he had provided was shot by his brother and it was taken three months before the hearing, and the police were trying to get the people away from election boxes in the school. He said that the other videos and pictures were of tribal fights in his village and other villages. He said some of these pictures were in Enga, in [Village 3] and [Village 1], and some were [Village 4] because it was in the news, and some were in [Village 2]. He said some of the pictures were of the recent rioting in Port Moresby and Lae. The applicant said that these two videos were of people from an opposing village who had been killed in his village three days ago.
Towards the end of the hearing, I put to the applicant concerns I had with the above claims. The most significant concern is that the applicant had not mentioned his cousin or the applicant’s political involvement with his cousin’s political campaign at all in his application. The applicant reiterated that he had thought he was returning to PNG and then when the violence happened, he just rushed to put in his application. The department told him he was going to have an interview and he could tell them then. I asked the applicant to clarify this and he said that he thought he was going to have an interview and he could tell the Department then.
I also attempted to clarify why and when his brother [Mr A] had been killed. The applicant claimed at the hearing that his brother had been killed in November 2023 in election related violence. I noted that the election was held in July 2022 as he had acknowledged, and I was trying to understand how his brother’s death could be connected some 16 months after the election. The applicant first said that the election had been delayed in his area. I noted that I accepted that the elections in PNG were sometimes delayed in remote areas, but that I did not think it would be 16 months. The applicant said that it had been delayed some three months. I again explained to him that there was a considerable gap between the election, even with a delay, and the killing of his brother and I was trying to understand how these things were connected. He then said that his brother had been killed when he (the applicant), had been working in Tasmania, so it was maybe March or April 2023. I noted to him that he had earlier told me his brother had been killed in November 2023 and he reiterated that it was in March or April 2023 that his brother had been killed.
I then explained to the applicant that this created a further concern, that if his brother had been killed as he now claimed in March or April 2023, he had made his application to the Department in September 2023 and had not mentioned in there that his brother had been killed. The applicant responded that he had not put this in his application because he had not had any evidence of his brother’s death, he just gave his date of birth and his visa expiry date. He did not have the photos at that point. When I said that I was not sure I understood why that would stop him saying it in his application. He then said that he thought he could give that evidence at the interview and then he was not called for an interview.
I have carefully considered the explanations the applicant has given. . I have grave concerns that the claims of the applicant to have been helping his cousin with his cousin’s election campaign, that there was an argument and fight with the other candidate’s supporters, that his led to violence in the village when the applicant was in Australia and that he had been told by his parents not to return to PNG because of this violence is absent from his written claims, which identify economic issues with return and mention violence only when he was asked why he could not relocate. I have concerns that when the lengthy time between the election and the claimed date of his brother’s claimed death was raised, he changed the date he claimed his brother was killed. Further compounding this concern is the fact that if the new date of his brother’s death is correct, the applicant did not mention it in his application.
I found the applicant’s claims for why he had not mentioned the claims related to political violence, his cousin, or the revised date of his brother’s death in March or April 2023 in his application to be unconvincing. I appreciate that he was not given the opportunity to discuss his claims at an interview with the Department, but it is also clear from how he has filled out the form that he appreciates that he is being asked why he left PNG and the claimed reasons he cannot return. I do not accept that he did not include the claims he made at the hearing in his application form because he was waiting for an interview or did not have proof of these claims. In his application he gave reasons for why he had left PNG, that his future looked bleak unless he was able to remain and work in Australia and did not want to return as he would not be safe and it would be hard to find employment, and indicated he would not be harmed or mistreated if he returned. I consider that this indicates a clear and coherent set of claims for the applicant about why he left PNG and does not wish to return, it just differs from that he claimed at the hearing. His inability to explain and justify why he did not mention his later claims leads me to disbelieve these later claims, and to find that he has manufactured these later claims to bolster his protection claims.
Because he did not make these claims in his protection application, has not explained satisfactorily why he did not, and relatedly the concerns with the explanations for the death of his brother and the date his brother is claimed to have been killed, I find that I do not accept the later claims of the applicant, I find that the applicant has invented these claims to strengthen his claims for protection.
I have carefully considered the information the applicant has provided in the form of three videos and many photographs. As the applicant conceded, some of these relate to events that occurred in [Village 4] village in 2019, some years ago. [Village 4] village is a significant distance from the applicant’s village. Some photographs are of a March or peace ceremony (differently described) in the applicant’s area but are from May last year.
I have watched the video that the applicant claims is taken by his brother and shows police shooting to drive people away from election boxes. The applicant claims this was filmed three months before the hearing, i.e. October/November 2023, but I have concerns with this claim, because the election occurred in July 2022 and while I am willing to accept there may have been violence at that time related to the collection of election boxes, I do not accept that there would have been election boxes in October/November 2023, over a year after the election was declared. Given this concern I do not accept that this video was taken by the applicant’s brother or shows what he claims it shows and I place no weight on this video as establishing or strengthening the applicant’s claims.
On this basis, I do not accept that his cousin stood as a local candidate in his village. I do not accept that the applicant or any member of his family got into an argument and a fight with supporters of the local candidate. I do not accept that his brother or brothers were killed for reasons connected with this political violence. I do not accept that the applicant will have to seek payback from the claimed killers of his brother or brothers.
I do accept that there is a significant level of violence in the highlands in PNG, including in Enga province where the applicant lived,[1] and I have had regard to the photos which I do accept show conflict in his area. I have had regard to the two videos he has provided which show men in a village with the bodies of other men. Whilst I have some concerns that these show the applicant’s village, he was able to readily identify the man speaking in one of the videos. After consideration, I am prepared to accept that these two videos show tribal violence in the applicant’s village close to the day of the hearing.
[1] DFAT Country Information Report - Papua New Guinea, 6 September 2022; 2.28; Aljazeera News, ‘At least 64 killed in ‘largest’ tribal clashes in Papua New Guinea’ 19 February 2024; At least 64 killed in ‘largest’ tribal clashes in Papua New Guinea | Gun Violence News | Al Jazeera; ABC News, ‘How the funnelling of high-powered weapons into Papua New Guinea is making tribal violence deadlier’, 20 February 2024
I find however, on the findings above, that I do not accept any of the claims the applicant has made for why he would be targeted in this violence. I do not accept that he would be targeted because of his and his cousin’s claimed political involvement, which I do not accept, I do not accept that the applicant would feel compelled to seek payback because of the death of his brothers or brother, which I do not accept.
However, I have considered the country information before me and I think that it indicates that the applicant may be harmed as a ‘young male member of his village’. I find that this group is a particular social group, because the characteristic is shared by those in the group, the applicant shares these characteristics, and these distinguish young men of the village from other members of the village. Having accepted that the videos the applicant has shown me are of opposing villagers who his village has killed, I accept that there is a real chance, that is one that is not remote, that if the applicant returns to [Village 1], Enga Province, he will be killed or otherwise seriously harmed by opposing villagers in payback violence.
Does the real chance extend to all areas?

The harm which the applicant fears in this case is inter-group violence in Enga province. I accept that currently there is significant violence which specifically targets young men such as the applicant from his and other villages. I have accepted that if he returns to [Village 1], there is a real chance he will be seriously harmed in this violence for this reason. I accept that this real chance extends to other areas of Enga province where the applicant would be distinguished as coming from his village and potentially targeted by members of rival villages within the local area.
I have considered whether the chance of harm extends to other areas of PNG. I find it does not, for the following reasons. The news reports referred to above refer to the violence in Enga province. I find that the real chance of harm is localised to the village of the applicant, the rival villages, and other areas of the province in which the applicant will be recognised as not coming from that area and potentially targeted on that basis. Port Moresby, Lae and Madang, as cities, are less localised than villages in the highlands. The country information is that many people can and do migrate to the cities, including to escape tribal violence.[2]
[2] DFAT Country Information Report - Papua New Guinea, 6 September 2022, 5.15.
At the hearing I discussed with the applicant whether he could live in Port Moresby, Lae or Madang and avoid the harm he claimed to fear. He responded that when there were fights in the highlands people would go to the city and live there, and then he would be targeted because of his connection with his cousin, and he supported his cousin.
As above, I have not accepted that the applicant’s cousin stood as a local candidate in his village. I do not accept that the applicant or any member of his family got into an argument and a fight with supporters of the local candidate. I do not accept that his brother or brothers were killed for reasons connected with this political violence. I do not accept that the applicant will have to seek payback from the claimed killers of his brother or brothers. I therefore do not accept that he will be targeted for harm for any of these reasons.
I have also considered whether he might be located by members of rival villages in Port Moresby, Lae or Madang. There is some information that those who relocate, especially to Port Moresby, are recognised and this information is communicated to their place of origin.[3] However, I do not accept that the applicant will be targeted because of his claimed association with his cousin, or his own political involvement. Rather I have found that he will be targeted as a young male member of his village. On this basis alone, I do not accept that members of a rival village would seek to harm the applicant even if his being in one of the identified cities becomes known to them, because he is not a significant factor of the village violence, has not engaged in that violence himself, and was not present during the attacks on the rival village featured in the videos.
[3] DFAT Country Information Report - Papua New Guinea, 6 September 2022, 5.16.
I find that the real chance of persecution is localised to his village and the Province of Enga.
In PNG the applicant worked in the family garden and was able to support himself. In Australia he has been working in construction for over six months having completed training to gain his ‘white card’ for the construction industry. He speaks Pidgin and English.
Whilst the country information is that some people struggle to relocate, and struggle to find employment, I do not think that the applicant will be among this cohort for the following reasons. The applicant is not one of the groups identified as having a particular vulnerability including victims of gender-based violence or sorcery accusations. He has transferable skills from his work in construction in Australia. While he said that the wages would not be as good as Australia, and he did not have a certificate to guarantee this job, I find that he will be able to gain employment in the construction industry in Port Moresby, Lae or Madang, even accepting that he may be paid less than he is being paid in Australia. He speaks Pidgin and English so I find that he will not have any language difficulties. I find he would be able to find accommodation in one of the identified cities. Access to these cities by air is safe and possible for the applicant. Whilst there is a level of violent and petty crime in urban areas, I do not accept that the applicant would be unsafe in one of these urban areas. As I find that he could gain employment, he would not be forced to live in an informal settlement, nor is he a woman, where women face a much higher risk of assault and robbery.
I find therefore that the applicant could access, be safe and be able to live in one of the identified cities.
I find that the real chance of persecution for reasons of tribal violence does not extend to all areas.
I have also considered the claim that the applicant will be economically affected by having to return to PNG. I accept that this is the case, but I have found that he can safely relocate to one of the identified cities where he will be able to find employment in construction, and I find that this would allow him to support himself and his family. I find that the applicant will not suffer serious harm for any reason connected to his economic situation on return.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Is there a real risk the applicant will suffer significant harm if he is removed from Australia to Papua New Guinea?
For the reasons above, I accept that there is a real risk the applicant will be killed or seriously harmed on return to his village or his Province. I find that being killed or otherwise seriously injured in tribal violence would constitute significant harm as that terms is defined.
I have considered whether the applicant can relocate to Port Moresby, Lae or Madang. I find for the reasons above that the real risk of significant harm from tribal violence is local to the applicant’s village, surrounding villages and the Province of Enga. I find that there is therefore no real risk of the applicant suffering significant harm if he relocates to one of the identified cities.
I have considered whether it is reasonable for the applicant to relocate to one of the identified cities. I find that it is. Having considered his responses at hearing I find that the applicant can find employment in the construction sector in one of the identified cities for the reasons above. I find that he speaks Pidgin and English and will have no language difficulties. I find he can find accommodation. I find that while there is a level of violent and petty crime in urban areas, I do not accept that the applicant would be unsafe in one of these urban areas. As I find that he could gain employment, he would not be forced to live in an informal settlement, nor is he a woman, where women face a much higher risk of assault and robbery. In his initial application the applicant claimed that he would be harmed economically if he returned to PNG. He feared that he would be unable to support himself and his family. As above I find that he could find employment in one of the identified cities and support himself and his family.
Having had regard to all of the claims made by the applicant and those apparent on the material before me, I find that in all the circumstances of the applicant it is reasonable for him to relocate to one of the identified cities where there is no real risk he will suffer significant harm.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
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 2739

16 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction