2401532 (Refugee)

2401532 (Refugee) [2024] AATA 2505 (13 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Navanjana Kawindi Batuwitaarachchige
CASE NUMBER:  2401532
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Victoria Price
DATE:13 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 13 June 2024 at 11:08am

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – members of the Sau Clan and Lungupini tribe – male members of the Sau Clan and Lungupini tribe – tribal conflict in the highlands – the wantok system – country information – credibility assessment – new claims – discrepancies in evidence – delay in seeking protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a male, [age] years of age. He stated that he is a citizen of Papua New Guinea (PNG), from [District 1], Enga province in the Southern Highlands. He stated he is a member of the Sau Clan and Lungupini Tribe and that he follows the Christian (Baptist) faith.
The applicant arrived in Australia [in] September 2022 as a seasonal worker. On 23 August 2023 he lodged an application for a protection visa with the Department of Home Affairs (the Department).
On 16 January 2024 the delegate of the Minister refused to grant the visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act), finding he did not satisfy the requirements of s.36(2) of the Act. This is an application for review of that decision.
The applicant appeared before the Tribunal on 7 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Detective Senior Sargent [A].
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CLAIMS AND EVIDENCE
The applicant’s claims for protection were set out in the protection visa application and in the documentary and oral evidence provided to the Tribunal. He claims that his tribe is currently engaged in ongoing conflict with a rival tribe and that he will be caught up in that violence in the future.
The applicant provided the following supporting material to the Department and the Tribunal:
·Identity material, including copies of the applicant’s birth certificate, national identity card, driver’s license and passport.
·Numerous photographs to demonstrate tribal violence in Enga Province.
·Statutory declaration from the applicant dated 26 April 2024.
·Legal submission dated 26 April 2024.
·Country information submission on the tribal conflict in Enga and links to recent news reporting on the tribal violence.
·Signed statement from Detective Senior Sargent [A] in support of the applicant’s claims.
·Post Tribunal hearing submissions dated 20 May 2024.
At the hearing the applicant confirmed his identity and familial and biographical information. He provided further details regarding his claimed past harm and claims for protection. This evidence is discussed below.
Applicant’s background and protection claims.
The applicant was born in the Southern Highlands in Enga, specifically in [District 1]. He is one of [number] children. His parents and [sisters] continue to reside in their village, one of whom is the village pastor. His brother is a [Occupation 1] and lives with his wife and children in a different area. The applicant has never married and does not have children.
The applicant completed primary and secondary school. He was then employed as [Occupation 2 completing specified job tasks]. He became well known throughout the local communities due to his work.
In Australia he has been employed as a seasonal worker at various locations in Tasmania. He is still residing in Tasmania but is not currently employed.
The applicant’s clan, the Sau Clan is part of the Lungupini Tribe, which in turn is part of the Saawalap allied forces. The Ambulin Tribe is the biggest in their alliance and they are currently engaged in conflict with tribal enemies. As allies of the Ambulin, the applicant’s clan and tribe have been drawn into the conflict. The conflict intensified in July/August 2023, when the applicant was in Australia.
Conflicts occurring in the current generation are different to those of the past, with widespread use of powerful weapons. His immediate family members including his parents and siblings avoided the conflict, but many of his extended family members and clansmen have been affected and killed. As a male member of the tribe, he will be expected to join the fighting and will be ostracised if he refuses to do so. If it came to it, he would feel obligated to participate and assist his clansmen. He fears being killed on return.
Witness evidence.
In addition to his detailed written statement, Detective Senior Sargent [A] provided oral evidence to the Tribunal. He stated that he personally knows the applicant because he is from the same village and is part of the same tribe.
Detective Senior Sargent [A] explained the background of this particular tribal conflict and stated that, in his capacity as a police officer, he witnessed firsthand the conflict in the Southern Highlands. He saw men, women and children being seriously injured and killed. He asked to be transferred to Port Moresby recently because he did not feel safe in the village.
He confirmed that the applicant’s clan, his own tribe, is directly involved in the conflict and stated that the situation had deteriorated since the applicant came to Australia. Detective Senior Sargent [A] genuinely believes the applicant will be killed or otherwise seriously harmed if he returns.
When asked about the recent ceasefire (see below), Detective Senior Sargent [A] stated that they are hopeful it will succeed and be effective, but he did not really believe it would be durable. The tribes are still there, the weapons are still thee and law enforcement has not been able to stop the violence. There are no guarantees of protection from violence of this kind and due to levels of displacement from the villages, the conflicts have transferred to bigger cities including Port Moresby.
Application of s 423A of the Act.
In accordance with s 423A of the Act, if the applicant raises a claim or presents evidence that was not raised before the primary decision was made, and the Tribunal is satisfied that there is not a reasonable explanation for failing to do so, the Tribunal is to draw an unfavourable inference regarding the credibility of that claim or evidence.
To the extent additional claims and evidence were presented to the Tribunal that were not provided prior to the making of the primary decision, the Tribunal considers there are reasonable explanations for this: the applicant was not interviewed by the Department; and only had the benefit of experienced representation at the Tribunal. I find that s 423A does not apply such that I am required to draw adverse inferences from new claims and evidence provided to the Tribunal, and I do not do so.
OVERVIEW OF 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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance 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 that country.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of reference, area of return, and s 36(3)
The applicant has provided his national identity card, birth certificate and passport, all of which indicate he is a national of PNG. I find that he is a national of that country, and that PNG is his receiving country.
The applicant has only ever resided in Enga province. His family continue to live there. I find this is the area to which he would return in the future.
There is nothing in the evidence before me to indicate that the applicant holds a right to enter and reside in any other country apart from PNG and I am not satisfied that he does. I find that s 36(3) does not apply in this case.
Refugee Assessment
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.
Applicant’s Credibility
I note there was one potential discrepancy between the evidence of Detective Senior Sargent [A] and that provided by the applicant. Detective Senior Sargent [A] stated that many of the applicant’s family members had been caught up in the conflict whereas the applicant stated his immediate family were fine and had not been harmed. However, it was explained that [A]’s reference to family was to the applicant’s clan and broader tribe. This is consistent with information below regarding the tribunal system in PNG and I accept this explanation.
The delegate noted concerns regarding the applicant’s delay in lodging his protection visa application. I do not share these concerns. The applicant credibly explained in submissions to the Tribunal that he was here in Australia, safe on another visa and it was only after the escalation of violence in mid-2023, that he became fearful, and he decided to apply for protection. I accept this explanation. I do not consider the delay undermines his credibility or his protection claims.
I found the applicant to be forthright in his oral evidence to the Tribunal. His evidence was detailed, generally consistent and presented in a manner indicative of genuine lived experience. Overall, I consider that his evidence and that of his witness is entirely consistent with the country information discussed below. I also consider that the evidence provided by Detective Senior Sargent [A] provided invaluable insight given his firsthand experience of tribal violence in PNG. I find that his evidence supported that of the applicant. I find the applicant to be credible.
Assessment
The applicant claims he will be killed or otherwise seriously harmed on return to PNG due to tribal violence, in which his tribe is directly involved.
There are hundreds of different tribal groups in PNG.[1] DFAT states that in fact, the number of separate ethnic groups may be significantly higher when wantok groups are included. [2] Wantokism is a system of kinship, welfare and mutual obligation which operates as a social support mechanism ensuring members of the tribe or clan are supported.[3] Members of the same social group (such as a family, clan, tribe, or people from the same province) are called a wantok.[4] According to DFAT, there are approximately 10,000 wantok groups spread across more than 600 islands.[5] Each tribal group is identifiable by their own language, customs and traditions.[6]
[1] DFAT PNG Report at [2.27]- [2.32].
[2] DFAT PNG Report, page [2.5], [2.10], [2.11].
[3] DFAT PNG Report, page 4, at [2.5], [2.10], [2.11] and [3.5].
[4] ‘Briefing Note No.2. Drivers of crime and violence in Papua New Guinea’, Lakhani S & Willman A M, World Bank, Social Cohesion and Violence Prevention Team, Social Development Department, 30 November 2012, pages 11-12 & page 11 footnote 18.
[5] DFAT PNG Report, page 4, at [2.5], [2.10], [2.11] and [3.5].
[6] Core Concepts’, SBS Cultural Atlas, 2016; R Scaglion, ‘Chiefly Models in Papua New Guinea’, The Contemporary Pacific, 1996, Volume 8, Number 1, Spring, pages1-31.
Information confirms that the Sau Clan is a tribe in the Highlands area.[7] I accept that the applicant is a member of this tribe and would be identifiable as such in PNG. Information also confirms the applicant’s evidence that his tribe is affiliated with the Ambulin tribe, and that the Ambulin tribe are currently in conflict with their enemy tribes.[8] This conflict is occurring in [Enga province].[9]
[7] Sua in Papua New Guinea people group profile | Joshua Project , accessed 12 June 2024.
[8] Frank Rai, ‘Fighting Tribes Agree to Ceasefire’, PNG Post Courier, 18 September 2023; and Tribal feuds wreck Enga -- Enga Wai Pii - Enga's Premier Internet Forum Zone. (voy.com), accessed 12 June 2024’ Historic ceasefire signed in PNG (islandsbusiness.com), 14 March 2024.
[9] Warring tribes in Papua New Guinea agree to 'completely end killings' | RNZ News, 14 March 2024.
Traditional tribal customs dictate that its members operate as a collective group who are mutually obligated to protect each other. When the member of an individual’s tribal group is ‘wronged’, fellow members of the tribe are obligated to join in any act of retaliation against the rival ethnic group.[10] In Enga, boys received instruction in combat techniques and the history of their clans and tribes. A study of the tribal system stated that ‘when, people get into a brawl, or someone steals a pig, rapes a woman or kills someone, and the clan must show that it has the strength to defend itself’.[11]
[10] DFAT PNG Report; Andrew Kobylinski Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea — AIIA - Australian Institute of International Affairs, 14 March 2022.
[11] Starza Paul and Gary Sali, ‘The Intriguing Challenges of Tribal Warfare In Enga: Communicating an Integrated Clan Based Approach’, Research Gate April 2021.
Tribal conflict can be triggered by matters such as election outcomes, land disputers and misunderstands, and occurs frequently.[12] Such conflict is particularly prevalent in the Highlands, including Enga. However, information confirms that the nature of these conflicts has shifted from traditional hand to hand combat with bush knives, to larger scale violence involved high powered guns and other weaponry.[13] Access to powerful weapons combined with a weaking of authorities’ ability to deal with these conflicts is said to have exacerbated tribal conflict.[14]
[12] DFAT PNG Report at [2.27]- [2.32].
[13] Tim Swanston, ‘How the funnelling of high-powered weapons into PNG is making tribal violence’ ABC 20 February 2024
[14] Bethanie Harriman, Papua New Guinea Killings: what’s behind the outbreak in tribal fighting?’ the Guardian, 29 August 2023; and Tim Swanston and Emily Clark, ‘Heavily Armed Highlands In PNG, weapons meant to keep the peace have been leaking to warlords for decades. Now, they're used in massacres, ABC News, 1 March 2024; HRW, 2024 World Report PNG, page 488.
In 2021, approximately 30,000 people were displaced by communal violence in the highlands.[15] Tribal violence in the Enga region intensified since the 2022 election in which Prime Minster Marape retained power.[16] Eighteen people were killed in Porgera district, in Enga Province, in July 2022 alone.[17] Some reports indicate that over 60 people were ultimately killed during the tribal conflict in 2022.[18] In 2023, the conflict escalated between the Ambulin and Sikin tribes and their respective allies, with estimates of up to 150 people killed by August 2023.[19] In early 2024 this culminated in the massacre in which at least 49 people were killed in Enga province.[20] This is said to be the largest group killing in Enga, possibly the largest in the Highlands.[21] According to HRW, since 2022 there have been over 400 deaths and 20,000 people displaced in tribal conflict.[22]
[15] DFAT PNG Report [2.28].
[16] Chad De Guzman, ‘Papua New Guinea Massacre: What to Know’, Time, 19 February 2024.
[17] DFAT PNG Report at [2.27]- [2.32].
[18] Tim Swanston, ‘At least 49 killed in massacre in PNG highlands’, ABC News, 19 February 2024.
[19] Chad De Guzman, ‘Papua New Guinea Massacre: What to Know’, Time, 19 February 2024; and Frank Rai, ‘Fighting Tribes Agree to Ceasefire’, PNG Post Courier, 18 September 2023; Bethanie Harriman, Papua New Guinea Killings: what’s behind the outbreak in tribal fighting?’ the Guardian, 29 August 2023
[20] Tim Swanston, ‘At least 49 killed in massacre in PNG highlands’, ABC News, 19 February 2024; The Associated Press, ‘Dozens of Men killed in Papua New Guinea tribal violence, police say, NPR, 19 February 2024; Tim Swanston, ‘How the funnelling of high-powered weapons into PNG is making tribal violence’ ABC 20 February 2024
[21] Tim Swanston, ‘At least 49 killed in massacre in PNG highlands’, ABC News, 19 February 2024; Chad De Guzman, ‘Papua New Guinea Massacre: What to Know’, Time, 19 February 202
[22] HRW, 2024 World Report PNG, page 488.
Reporting in March 2024 indicates that the warring tribes agreed to a three month cease fire.[23] The factions pledged to work together with the State and its agencies to end to their conflict and work towards restoring peace and normalcy in their communities through established legal processes. Concerns were noted regarding the durability of any ceasefires given the underlying causes of the conflicts are not being addressed, and the historical nature of tribal conflict in the Highlands.[24] These concerns were expressly raised by the applicant’s witness, Detective Senior Sargent [A] in the hearing. Indeed, the tribal violence was reignited in May 2024.[25]
[23] Warring tribes in Papua New Guinea agree to 'completely end killings' | RNZ News, 14 March 2024; Historic ceasefire signed in PNG (islandsbusiness.com), 14 March 2024.
[24] Professor James Chin, More Instability Ahead for Papua New Guinea - Australian Institute of International Affairs - Australian Institute of International Affairs, 21 March 2024.
[25] Haberin Devami, Tribal violence hinders access to deadly PNG landslide - World News (hurriyetdailynews.com), 26 May 2024; and AFP, Tribal Violence, Rain And Mosquitoes: Making Sense Of The PNG Landslide | Barron's (barrons.com), 28 May 2024.

DFAT and the Minority Rights Group stated that tribal conflicts often affect transmigrated populations in other parts of the country, including the larger cities of Port Moresby and Lae.[26] Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. For example, a high school aged boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict.[27] Overall, 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.[28]
[26] DFAT PNG Report at [2.27]- [2.32]; and Papua New Guinea - Minority Rights Group, updated February 2018; Frank Rai, Fighting tribes agree to ceasefire - Post Courier, 18 September 2023.
[27] DFAT PNG Report at [2.31].
[28] DFAT PNG Report at [2.32].
Police capacity and willingness to prevent and investigate tribal fighting is typically limited. The police force are often outnumbered and outgunned by warring groups and can only intervene at significant personal risk.[29] More generally, the ability of the police to provide protection is limited.[30] A lack of resources, including staffing, and clan rivalries undermine the effectiveness of authorities.[31] Information indicates that PNG has one of the lowest police-to-population ratios in the world and police presence in some remote areas of the country is negligible.[32]
[29] DFAT PNG Report at [2.30].
[30] DFAT PNG Report page.23
[31] DFAT PNG Report page 22.
[32] United Sates Overseas Security Advisory Council (OSAC), 'Papua New Guinea Country Security Report', 27 November 2023; and Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment 'Inquiry into gender equality policies and institutions, gender-based violence and sorcery accusation related violence', October 2023, page 3.
I give weight to information above regarding the historical nature of tribal conflict in the highlands, and that the wantok system, obligating members of a tribe to defend the collective, is embedded in traditional customs of PNG. I also give weight to information that these conflicts have become more violent with the breakdown of law and order and the availability of high-powered weapons. I have also considered, and give weight to, information from DFAT that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence, and that this risk is not ameliorated by moving to larger cities or other areas of the country.
In this case, I have accepted that the applicant is a member of a tribe that is engaged in conflict with an opposing tribe. I find he is well known in the tribe and surrounds due to his work as a [Occupation 2]. I find that he would be known and identified as a member of that tribe on return, and I accept his evidence that he would be compelled through the bonds of his clan and tribe to partake in the violence, particularly as male members of the tribe are trained for tribal conflict. Even if he does not partake, I find he would still be a target for such violence as part of the tribe. I accept that the applicant faces a real chance of treatment amounting to serious harm, specifically significant physical violence and being killed, due to tribal conflict if he returns to Enga province now or in the reasonably foreseeable future.
On the above information, and in the accepted circumstances, I find that the essential and significant reason the applicant will be harmed is due to his membership of the particular social groups of ‘members of the Sau Clan and Lungupini tribe’ and ‘male members of the Sau Clan and Lungupini tribe’. I find these are particular social groups as that term is defined and, in particular, I note that the shared characteristic is the tribe itself and being a male member of the tribe, not the harm feared through the conflict. Having regard to the country information above, including DFAT’s assessment that relocating with the country does not ameliorate the risk of harm, I find that the real chance of harm extends throughout PNG. I also find that the harm involves systematic and discriminatory conduct.
I give weight the information above regarding the limited ability of the police to provide protection and intervene in conflicts of this nature. I find that effective protection measures are not available for the harm faced by the applicant.
I find that it would not be reasonable for the applicant to modify his behaviour, as to do so requires him to conceal an innate or immutable characteristic, being his membership of his tribe and his male gender. These are impermissible modifications for s 5J(3)(b). I find s 5J(3) does not apply.
I find that the applicant has a well-founded fear of persecution.
Refugee: conclusion
The applicant meets the requirements of the definition of refugee in s.5H(1).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Victoria Price
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 2505

13 June 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies