2401534 (Refugee)

2401534 (Refugee) [2024] AATA 2997 (26 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Katie Wrigley
CASE NUMBER:  2401534
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Tania Flood
DATE:26 April 2024
PLACE OF DECISION:  Sydney
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 26 April 2024 at 9:32am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – women in PNG – gender-based violence – fear of harm from former partner – kidnapping and sexual assault – ongoing harassment and threats – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 January 2024 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 13 September 2023. The visa was refused on the basis that the delegate was not satisfied there is a real chance or a real risk the applicant will suffer serious or significant harm if she returns to PNG.
The applicant appeared before the Tribunal on 24 April 2024 to give evidence and present arguments. 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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations under s.36(2)(a) or (aa) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims and evidence
According to information contained in the application for a Protection visa the applicant is a [age]-year-old citizen of Papua New Guinea (PNG). She was born in [City 1] in [Province]. Her parents, sister, [number] brothers and a stepbrother reside in PNG. She indicated that her parents are residing in Port Moresby and she remains in contact with them. She indicated that she resided in Port Moresby from [year] until 30 April 2020. She then moved to [City 1] on 1 May 2020 where she stayed until 1 September 2020. She resided from 1 September 2020 to 17 September 2020 in [Town 1] and then from 18 September 2020 to 18 October 2020 in a village (unknown name) in [District 1], [City 1]. Prior to coming to Australia she resided from 18 October 2020 to 28 February 2022 at numerous addresses in Port Moresby.
The applicant states she departed PNG [in] March 2022 because she feared harm, including physical violence, from her former boyfriend of about two years, [Mr A]. She states [Mr A] was very controlling of her during the relationship and she ended it in early 2020. He then became angry and pursued her. He beat her with his fists and pushed her against walls and cars and on one occasion he broke her nose.
She states that on two occasions she reported violent incidents to the police and on both occasions [Mr A] was taken to the police station but later released without charge.
She states that in 2020 she moved from her parent’s house in Port Moresby to her father’s village in [City 1]. She found out from her cousins that [Mr A] had found out where she was and so she left the village and went to her mother’s family in the Southern Highlands. She states that [Mr A] came to the village and forced her to go with him to his home village in [City 1]. She states he locked her up in his house for a month until she escaped in late 2020. She then returned to Port Moresby and moved between houses of relatives in order to hide from [Mr A] until she departed for Australia. She states that [Mr A] has continued to send threats to her over social media since her arrival in Australia.
She fears that if she returns to PNG [Mr A] will find her wherever she is and attack her and possibly even kill her as he has threatened to do.
She claims that [Mr A] comes from a wealthy family and runs his own business. She believes that when she previously reported him to the police he bribed them and this is why they took no action against him. She states that she tried relocating but [Mr A] has many resources and connections all over PNG.
The applicant attached a copy of the PNG passport to her application. She also provided a statutory declaration dated 12 September 2023 in which she repeats her claims and future fears of harm at the hands of [Mr A].
The applicant also produced evidence of text messages between her and [Mr A] dated in 2023.
The Department file also contains a submission made on the applicant’s behalf by the Refugee Advice and Casework Service (RACS) dated 13 November 2023. The applicant’s claims are repeated and country information is referenced in respect of the violence against women in PNG and police responses to gender based violence. It is submitted that the applicant fears harm because of her membership of particular social groups: women; women subject to domestic violence from their partners; and women who have left abusive partners. It is further submitted that the state is unable to provide her with adequate protection from the harm she fears and that there is nowhere she could go in PNG where she would be safe from harm from her former partner.
A further submission from RACS dated 21 November 2023 provides a further summary of her claims and the grounds on which she fears future harm. It also provides evidence of the applicant’s [work] for a [company] in PNG. Additional screenshots of SMS and WhatsApp communications received from [Mr A] are also attached. Evidence was also provided of the address of [Mr A]’s family estate in Port Moresby.
Pre-hearing submission to the Tribunal
On 8 March 2024 the Tribunal received a submission from RACS dated 8 March 2024. The submission reiterates the applicants claims and refers to relevant country information regarding gender-based violence in PNG. The submission also responds to adverse information contained in the Department’s refusal decision.
Tribunal hearing
The applicant appeared before the Tribunal on 24 April 2024. During the hearing discussions were held with her about her background in PNG; her claimed relationship with [Mr A]; the harm which he is claimed to have inflicted on her in the past; her decision to end the relationship and her movements thereafter; her attempts to obtain police protection and her fears that [Mr A] will harm her on return to PNG. The Tribunal also discussed with the applicant the possibility of relocation within PNG to avoid any further harm from [Mr A].
Country Information
The most recent DFAT report[1] gender discrimination exists at all levels in PNG and cultural barriers continue to significantly limit the extent of female participation in political, economic, social and religious activities. In 2020, PNG ranked 161 out of 162 countries on the UNDP’s Gender Inequality Index (162, Yemen, being the worst).
[1] DFAT Country Information Report Papua New Guinea, 6 September 2022
DFAT reports that violence against women and girls in PNG is very common, among the most common in the world. Sources report that almost all women and girls will be subject to violence at some point during their lives. The PNG Demographic Health Survey of 2016-2018, which is the largest data available, found very high levels of violence against women: 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15 (including 48 per cent in the last 12 months); 28 per cent experienced sexual violence and 18 per cent of women who had been pregnant had experienced violence during their pregnancy. The PNG Coalition of Parliamentarians to End GBV (gender-based violence) states that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of GBV every year.
DFAT assesses that women across PNG face a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict their ability to fully participate in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highland provinces are at particular risk, although violence against women occurs nationwide. Women who are subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.
DFAT reports that while there has been significant attention paid to the level of GBV in PNG by the national government and NGOs, and some state resources made available to address it, the police response remains inadequate. The RPNGC lacks the capacity, including most especially vehicles, fuel and human resources, to respond to crime generally. However, its response to GBV is especially lacking. Domestic and international sources report that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Statistics provided by the RPNGC between December 2017 and October 2018 showed 2,013 family and sexual violence (FSV) cases were reported in Port Moresby and the Central Province, resulting in 195 arrests and 11 convictions; that is, only 1 in 200 of reported cases resulted in a conviction. Given how few women seek help from police, this suggests only a tiny proportion of perpetrators of violence are arrested or successfully prosecuted. Even seemingly clear-cut cases can end without a conviction.
FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Levels of GBV by police officers themselves are high. Police are more likely to act on complaints about perpetrators outside the family if they act at all. However, the RPNGC has made some progress in recent years, establishing Family and Sexual Violence Units (FSVU) in every province. Sources told DFAT FSVUs represent progress in the policing of GBV, especially with regard to the willingness to investigate and make arrests, and in their connectedness to other services. However, there are not enough FSVUs to respond adequately to the scale of the problem. FSVUs are typically subject to the same resource constraints as the rest of the RPNGC.
DFAT reports that in September 2013, PNG’s parliament unanimously passed the Family Protection Act (2013). It makes provision for interim protection orders (IPOs) and longer-term protection orders (POs), which forbid contact of the person seeking the order by a spouse, ex-spouse or family member. In-country sources told DFAT that this is a reasonable framework for a justice sector response to GBV, but suggests its implementation remains weak. While IPOs reportedly make a positive difference to perceived safety of FSV survivors, sources suggest they are not presently offering women in PNG much protection. Furthermore, sources report the RPNGC typically lacks the inclination and resources to enforce such orders.
According to the DFAT report sources report a significant lack of services for people requiring assistance after suffering family violence. There are now 22 Family Support Centres (FSCs) across the country (one in each province), typically attached to a general hospital to provide health services for GBV survivors. But while the FSC model is an advance for GBV health responses, their services are insufficient. While women’s refuges exist in PNG, they are insufficient for the level of GBV that exists.
On the issue of internal relocation DFAT reports that some people struggle to relocate within PNG to avoid issues such as GBV or SARV. Papua New Guineans commonly rely upon family and tribal networks for support, in the absence of government services. Lack of resources and language difficulties can present problems, especially for single women, even more so for those with children. Exacerbated by the widespread take-up of mobile phones and social media, and the presence of diaspora from other parts of PNG (most especially in Port Moresby which one source referred to as ‘Little PNG’) those who relocate are often recognised in their new home and this information will typically be communicated to their place of origin. This may present a continuing threat to those attempting to escape violence.
This assessment is widely confirmed.[2]
FINDINGS AND REASONS
[2] ‘Study finds PNG women with more wealth, education experience higher levels of domestic violence’, ABC News, 23 February 2023; ‘Freedom in the World 2023 – Papua New Guinea’, Freedom House, august 2023; ‘Country Reports on Human Rights Practices for 2022 – Papua New Guinea’, US Department of State, 20 March 2023
Country of nationality
The applicant produced her PNG passport during the Tribunal hearing which verifies her claimed identity and nationality. Based on this documentation and in the absence of any information to the contrary the Tribunal is satisfied that she is a citizen of PNG.
The Tribunal found the applicant’s evidence to be credible and convincing. Her oral testimony was generally consistent with her written claims and statements regarding her relationship with [Mr A] and what is claimed to have occurred in PNG. She spoke frankly and confidently about the events which are claimed to have occurred and the Tribunal did not observe any attempt to exaggerate or embellish her claims in anyway. She displayed genuine emotion when discussing her lived experience at the hands of [Mr A], particularly the claimed kidnapping and sexual assault which took place at [Mr A]’s house in [City 1] in late 2020. Her description of how she escaped from this situation was particularly detailed and despite some earlier misgivings about the veracity of this claim her testimony convinced the Tribunal she was telling the truth. In addition, she has produced compelling evidence of ongoing harassment and threats from [Mr A] since her arrival in Australia. The applicant’s claims are also not inconsistent with the country information outlined above regarding prevailing attitudes about women’s role in society and the prevalence of gender-based violence in PNG. Having carefully considered the evidence the Tribunal is satisfied that the applicant’s claims are truthful.
The Tribunal is satisfied that the applicant was involved in an intimate relationship with [Mr A] from 2018 to 2020. The Tribunal is satisfied that [Mr A] was controlling of her in the relationship and that he broke her nose in October 2020 in a jealous rage. The Tribunal accepts this incident caused her to end the relationship and that out of fear for her safety she relocated first to [City 1] and later to the Southern Highlands where she stayed with family. The Tribunal accepts that she met [Mr A] at a cultural event in the Southern Highlands and that she unwisely agreed to accompany him and several other people in his car to a neighbouring village. The Tribunal accepts that [Mr A] refused to release her and kept her against her will in a house in [City 1] for approximately one month during which time he confiscated her phone and sexually abused her. The Tribunal accepts she managed to escape in the manner claimed and returned to Port Moresby where she remained living in houses of various relatives until she departed to Australia.
The applicant claims that if she returns to PNG [Mr A] will continue to harass and harm her. During the hearing the Tribunal asked the applicant about her experiences in Port Moresby between her return there in about November 2020 and her departure to Australia in March 2022. She advised that she had no further contact with [Mr A] during that time because she was moving between the homes of various relatives and was never in a position where [Mr A] could directly approach her. However, she claims that she saw vehicles with tinted windows sometimes cruising around her location. She also testified that she did not have a phone during this period of time as her father advised against it. However, she states that since coming to Australia and obtaining a phone he has sent her many threatening messages via WhatsApp. She stated that despite blocking his number he has repeatedly sent her messages using different phone numbers. When asked how he obtained her number in the first place she surmised that he had obtained it through a close friend or relative. As to why she did not get a new phone number she provided a plausible explanation stating that after lodging the Protection visa application she was aware of the need to preserve evidence of his threatening behaviour.

The Tribunal notes that the applicant was able to avoid further harm from [Mr A] in Port Moresby for a significant period of time after ending their relationship. However, it considers this was likely aided by the COVID-19 pandemic restrictions in place at the time and the steps she took to conceal her whereabouts rather than disinterest on his part given his continuing attempts to contact and threaten her in Australia.
If the applicant were to return to PNG now or in the reasonably foreseeable future the Tribunal considers she would likely seek to re-establish herself in Port Moresby where her parents and siblings reside. The Tribunal accepts the argument made by her representative during the hearing that it is unreasonable to expect her to live in hiding indefinitely in order to avoid further harm from [Mr A]. Should she seek to find employment or to re-establish connections within the community the Tribunal considers it likely that her presence in Port Moresby would quickly become known to [Mr A]. The available evidence reveals an ongoing stream of abusive and threatening messages from [Mr A] as well as recent messages from relatives and friends advising that he is still asking around about her in the community and spreading rumours about her. The Tribunal is concerned by these messages and has placed weight on them. Given the prevailing rates of gender-based violence and the reported impunity with which many perpetrators of such violence in PNG act, the Tribunal has adopted a cautious approach in this matter and is prepared to accept that there is a chance which is not remote that [Mr A] may seek to again harm the applicant if she returns. The Tribunal accepts the applicant may be subjected to harassment, threatening behaviour and even serious physical violence from [Mr A] if she returns to Port Moresby now or in the reasonably foreseeable future.
Credible country information suggests the rate of gender-based violence is shockingly high in PNG with some sources labelling gender-based violence an epidemic[3]. It is reported that long-standing traditional values and gender roles severely restrict the ability of Papua New Guinean women to freely participate in the community and the rate of violence may stem from this lack of equality and gender discrimination which exists across all levels of society[4]. The Tribunal is satisfied that the essential and significant reason for the harm the applicant will suffer will be her membership of the particular social group of women in PNG. The Tribunal is also satisfied that the particular social group of women in PNG is identifiable by a common characteristic, that being their gender and that this characteristic distinguishes the group from society at large. The Tribunal is also satisfied that the characteristic common to the group is not the shared fear of persecution.
[3] ANU Crawford School of Public Policy, Combatting the family and sexual violence epidemic in Papua New Guinea, submission to the inquiry of the Human Rights Subcommittee of the Foreign Affairs, Defence and Trade Joint Standing Committee into the human rights issues confronting women and girls in the Indian Ocean-Asia Pacific region, May 2014.
[4] UNDP Gender Inequality Index 2020 (2019 data), Gender Inequality Index (GII) Human Development Reports (undp.org)
The Tribunal has considered whether the harm the applicant’s fears could be avoided by her living somewhere else in PNG. During the hearing the applicant maintained that she would not be safe in another part of the country as [Mr A] is from a wealthy family and has connections all over the country. At the outset of the hearing she gave credible testimony about [Mr A]’s family including that his father owns [various] businesses throughout PNG as well as in other Pacific countries. The Tribunal has no reason to doubt her evidence in this respect. The Tribunal has considered her testimony and relevantly notes, as outlined above, that DFAT reports that Papua New Guineans commonly rely upon family and tribal networks for support and nowadays the widespread availability of mobile phones and access to social media, together with the presence of diaspora from other parts of PNG (most especially in Port Moresby) means that those who attempt to relocate to avoid gender-based violence are often recognised in their new home and reportedly this information will typically be communicated to their place of origin. DFAT assesses this can present a continuing threat to those attempting to escape violence. Accordingly, the Tribunal is satisfied that should the applicant attempt to live elsewhere in PNG news of her presence there would likely reach [Mr A]. Accordingly, the Tribunal is satisfied that the real chance of harm relates to all areas of the country.
Regarding her ability to access effective state protection, the applicant has consistently claimed that she, together with her father, made at least two attempts to report [Mr A]’s violent actions to the police. She stated during the hearing that she attempted to get a restraining order against him but each time she was told to wait for the outcome which never came. She testified that she believes [Mr A]’s family likely used their wealth and influence to bribe police officers not to progress her complaints. Her claims are not inconsistent with the country information outlined above regarding the challenges women face in seeking protection in PNG.
Despite that there have been some attempts to pass laws and resource Family and Sexual Violence Units within the police force, the country information outlined above, including about the inadequacy of police protection for victims of gender-based violence indicates that state protection is ineffective and often allows perpetrators to act with impunity. Gender-based violence is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene and levels of gender-based violence by police officers themselves are high. The available country information indicates that there is a systemic failure in PNG to properly protect women from violence. Based on the available country information the Tribunal finds that the applicant would face systemic and discriminatory failure by agents of the state to properly enforce the law and provide her with protection against the harm she fears from [Mr A]. The Tribunal does not accept that effective state protection will be available to the applicant in PNG against the harm she fears from [Mr A].
Having regard to the above the Tribunal finds the applicant has a well-founded fear of persecution on return to PNG now or in the reasonably foreseeable future.
There is no information before the Tribunal to support that the applicant has the right to enter or reside in a third country.
CONCLUSION
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.
Tania Flood
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 2997

26 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies