2404705 (Refugee)

2404705 (Refugee) [2024] AATA 4192 (27 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2404705
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Clyde Cosentino
DATE:27 August 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 August 2024 at 2:32pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – visa application prepared by another person without applicant’s knowledge of claims – new claims made with review application – three deaths in family in short period, attributed to sorcery – land dispute with cousins, applicant hit in altercation and house damaged – cousins’ bribery of police and intimidation or bribery of villagers – no supporting evidence of adopted daughter’s death or of unnatural causes or sorcery – no harm to other family members – news articles about different incidents of claimed sorcery – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(b), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 February 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, applied for the visa on 24 October 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 23 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
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 (the department), 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 engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving country
In the department decision provided by the applicant to the Tribunal, the delegate found that the applicant provided sufficient evidence of her identity which was consistent with her narrative and biometrics. The delegate accepted that the applicant was a citizen of Papua New Guinea and there is no information before the Tribunal to the contrary. The Tribunal finds, therefore, that the applicant is a citizen of Papua New Guinea, and that Papua New Guinea is her receiving country for the purposes of assessing her claims for protection.
Evidence before the Department of Home Affairs (the department)
The applicant provided the following documents to the department in support of her claims:
a.Application for a protection visa
b.Copy of front page of her passport
c.National Identity Card
d.Papua New Guinea (PNG) Birth Certificate
Evidence lodged prior to 23 May 2024 Tribunal Hearing
The applicant provided the following documents to the Tribunal in support of her claims:
a.Delegate’s decision dated 18 February 2024
b.Applicant’s new statement of claims dated 15 May 2024 (see summary below)
c.Copy of letter dated 13 May 2024 from the Hon. [Mr A], [Ward] Member
d.Five separate emails with links to online news articles relating to persons accused of, or under suspicion of sorcery.
e.Copy of Medical Certificate of Death of [Ms B] aged [Age] years of [Village], dying of [named] Disease on [date] February 2023. The Medical Certificate is dated [February] 2023.
f.Email submission form [Organisation 1] (not the applicant’s authorised representative) seeking a postponement on behalf of the applicant.
The applicant’s new statement of claims is summarised below:
a.She comes from [Village], [Area], Central Province.
b.Her mother passed away on [date] February 2023 on her sick bed. Her brother died on [date] February 2023 after collapsing on his way home from visiting his sister. She states that the death certificates were attached. (However, the only death certificate provided to the Tribunal was the Medical Certificate of Death of the applicant’s mother). Her adopted daughter died [in] March 2023. The cause of death was unknown and caused fear and animosity in the community.
c.On 6 March 2023, their neighbour cousins (on her father’s side) approached the applicant’s family telling them to leave the land which they claimed belong to them. A fight ensued between the families. She states that a Councillor statement was attached. (The only statement attached was a brief letter from the [Ward] Member stating that a complaint was made by the applicant that a land dispute occurred and that their home was ‘partly destroyed’). The applicant stated that photos were attached of the partly destroyed home. (No photographs were provided by the applicant). The applicant stated in her statement that the house was passed down by her father and it is passed down to males.
d.During the fighting on 6 March 2023, one of the cousins [told] the applicant that she should look after herself as she was next on the list.
e.The applicant received a lot of physical abuse and threats and the sequence of death in the family was unusual and believed to have arisen from sorcery. Sorcery is feared in her village and is practiced by witchdoctors there. Many community members have died from sorcery. She stated that she attached articles about sorcery in the Central Province.
f.The applicant had been told to leave or she would be killed. She lives in fear of being the next target in her family to be killed.
g.She reported the matter to her village Councillor including the damages to their house but it has fallen on deaf ears.
h.The police and judiciary systems are unreliable. Traditional matters cannot be dealt with under Western laws. Therefore, police feel powerless to intervene in traditional matters.
i.Land disputes and sorcery have caused many deaths. Bribery is the most common issue in Papua New Guinea. Land has been taken over because of bribery. Many genuine landowners have lost their cases in court battles. Land grabbing is a big issue in her village and across the country.
j.Because she feared for her life, she went and temporarily lived in Port Moresby in a suburb called [Suburb] with a [friend]. She was confronted with a life and death situation, so she left her village to seek refuge. She reported the matter of the threats and her assault to [Suburb] police. She knew she would die because of the sorcery. She believes the deaths of her family are a testimony to this “very prevalent practice”.
k.Whilst in Port Moresby, she joined women in [a] Group for a Conference in [City, Australia] for [Organisation 2]. This took place in Australia [in] September 2023. She arrived in Australia [in] August 2023. She felt safe in Australia. She feared for her life going back to Papua New Guinea and has therefore applied for protection here.
Tribunal Hearing
The Tribunal referred the applicant to her original application lodged on 24 October 2023. It asked whether she recalled putting together that application. She stated that she was new in Australia and needed someone to help her in this process. She stated that she was looking at ways in applying for a visa at the time. She obtained the assistance of a man called [name], through a contact, and paid $250 for his services. He wrote his own claims in the application without the applicant’s consent. He told her he would help the applicant throughout her visa process. Having asked the questions of the applicant, he then completed the application and lodged it on her behalf. The applicant had no idea what went into that application. The claims that were included in the application were not her claims. She only found this out after the department’s decision was made to refuse the application. The applicant’s actual claims are the ones included in the statement she provided to the Tribunal after applying for review.
The first time she came to Australia, she came for a holiday in 2017 for one week with her cousin’s sister. The applicant last came to Australia in August 2023. She came with a group of women and men. They came last year to attend [a] Conference in [City, Australia]. The Conference [was in] September 2023. The applicant arrived a little earlier in Australia as the fares were cheaper at the time. She stated that between 80 to 100 people came from Papua New Guinea for the Conference.
The Tribunal then asked the applicant whether any of the claims written in the original application were true. She stated they were not true. The Tribunal asked her again whether the claims in the original application were the claims that she wished to discuss at the hearing. She stated that she did not wish to discuss the claims made in the original application as they were not true.
The Tribunal then asked whether she would only be relying upon the statement that she provided to the Tribunal for the review. She confirmed this was the case. She stated that the new claims in the statement were the only claims she wished to rely on and discuss at the hearing.
Asked where she last lived in Papua New Guinea, she first stated at [Workplace], Papua New Guinea before she came to Australia. However, she then clarified this by saying that she was there from time to time to sell various items at the markets with the other women, to raise funds to come to Australia. However, she was residing and sleeping at her village, namely [Village], [Area], Central Province. [Village] is about [Time] drive from Port Moresby. She has lived at [Village] all her life.
The applicant stated that all her family live in [Village]. Her late mother, who passed away [in] February 2023, had lived there as well as her late father, who passed away in 1997. The applicant’s eldest brother passed away six days after her mother passed away. She has two brothers remaining. The applicant’s youngest brother, [Mr F], came with the applicant to Australia. The second born brother lives at [Village] with his family. His name is [Mr G]. [Mr G] lives in [Village]. He goes to and from his wife’s village back to [Village] where he stays. The applicant’s younger sister is married and living with her husband in [Village]. Her adopted older sister, [Ms H], travels between [Village] and the city as her children live in the city. The applicant indicated that [Village] has a population of approximately 5000 to 6000 people.
The applicant stated that she came to Australia on a visitor visa. She was granted a “multi-entry” visa (five-year term) permitting maximum stays as a visitor of up to three months at a time in Australia. The applicant stated that she applied for a protection visa before the end of the first three-month period.
The Tribunal asked the applicant why she applied for a protection visa. The applicant stated that she did not feel safe back in [Village] because of the deaths in her family. She has lived in [Village] all her life.
The Tribunal asked whether she was married. She said she was. The Tribunal asked whether she was still married with her husband. She said she was. The Tribunal asked where her husband was now. Her husband is from [Location]. His family come from there. He travels there from time to time. He normally lives in [Village]. He works at little markets at [Village]. He sells fish and a variety of other goods. He spends most of the time at [Village]. He lives at the applicant’s family house. This house was her parents’ house that was left to her whole family. The Tribunal asked who presently lives there. She stated her husband, [Mr I], and their two children [Names, ages and genders] and her brother [Mr G] and his family. She stated that both her children are going to high school.
The Tribunal referred to her statement. It indicated that her house was “partly destroyed” on 7 May 2023 resulting from a dispute between her family and her cousin neighbours. She stated that the wall on the outside was destroyed from stones. The applicant stated that the house has slowly been fixed. It is now good enough for her family to live there. Her family have rebuilt it. She stated that the letter from the [Ward] Member, [Mr A], and provided to the Tribunal, confirms that the house had been “partly damaged”.
The neighbours who have had the dispute with her are also her cousins on her father’s side. They were responsible for damaging the house and the altercation that took place. They wanted the family to move. It was after that alteration that her family went to seek shelter with relatives in [Village] for a few nights before they returned a few days later.
The applicant stated that the tension has calmed down with the cousins since that time. However, the family connection between the two has broken down. The alteration resulted from frustration over the ongoing land conflict. Her family now ignores her cousin’s family, and they ignore her family. They all live their own lives.
The land conflict between the two families has been ongoing for some time - at least since her father died in 1997. There has always been tension between the families. The village leaders have tried to mediate. However, her cousins have not attended the mediation. The size of the land in dispute is about 30 metres by 40 metres. This land was given to the applicant’s father and his brothers. Her father and his brothers were living there. Her father's brothers all died. Her father was the last child alive in that family. When her father finally died, the applicant’s eldest brother was next in line for that land. It is a customary title of land that passes on and not a legal title.
The Tribunal queried why she was fearful, given that her family remain living in the house (which they have for a long time), even after there has been ongoing tension with her cousins and an altercation with her cousins one year before. The Tribunal indicated that even her husband and her own children still live there. The applicant stated that one of her cousins had told her during the altercation in May 2023 that she was the next one to die. She said that he had told her: “[the applicant – given name], look after yourself. You are next on the list.” This is the translation of what she had written in her statement to the Tribunal. This was said to her by one of her [cousins] during the altercation. Because of what was said, she had sleepless nights.
She stated that her cousins are known for sorcery in the village. They practice sorcery back home. The applicant felt in her heart that she feared for her life. She did not want to stay in her village. From that time onwards she moved around. She would go to the city and back home again.
The Tribunal queried where she moved around to, given that there was three months from May 2023 to August 2023 when she departed for Australia. She would go from her village to the city and back home again. She would go to the city to work at the markets to earn money for the Conference to come to Australia. She really wanted to come to attend the conference in Australia.
The Tribunal asked where she would sleep when she came home from the city. The applicant stated in her [Village], but mostly with her other relatives. She would sleep in her other cousins’ house in [Village]. The Tribunal put to the applicant that her disputing cousins would know where she was living with her other cousins. The applicant stated that her other cousins did not know where she was living. They did not know her whereabouts.
The Tribunal queried why her cousins would focus on her. The applicant stated that she was the only one who does the work and supports her family financially. She was the only one supporting her family. She recalls that her cousins were screaming her name during the time of the altercation in May 2023. They know that she speaks on behalf of her brothers.

The Tribunal queried why they did not target her husband as well. She stated that her husband was from another village. He has no say in the applicant’s land issues. They would not listen to her husband. Because she is still living in [Village], they are targeting her. If her brother was living full time in the village, they would target him as well.
The applicant stated that she is now the eldest in the family, apart from her adopted big sister. The Tribunal asked whether the house would now pass down to her. She said it passes down to her second brother [Mr G]. The Tribunal asked why her cousins would not target [Mr G]. She stated that he is married to someone else and does not spend a lot of his time at home. He resigned from his job and stays with his wife at her family’s village house. She said that he does not stay full time in [Village]. He travels between his wife’s village and back to [Village].
When asked whether by way of customary law, the responsibility of the house passes to her brother, the applicant said yes. She stated that, by way of custom, when the daughters marry, they are not supposed to be living in their village. They should be moving to their husband’s house and village. She thought that it might be because she stayed in her own village that her cousins were targeting her. The Tribunal asked what would happen to her brother if he was living there. She stated that if he was living there every day the same thing would happen to him as well.
The Tribunal queried why she did not think she was safe with her family living there and other family members who could protect her there. She stated that they do not have the courage to speak up, particularly to sorcery there. They fear that something might happen to them. The applicant does not want to go back because of her family history. Her cousins practice sorcery in the village. Her cousins own about four blocks in the village. A family would normally own one. Only recently, they physically moved the boundary and made the applicant’s land boundary smaller.
The Tribunal queried why she could not move to [Location] where her husband comes from. She stated that she would not be accepted there. Villagers at [Location] practice sorcery there as well. He husband’s father is from [Location 1] and his mother is from [Location 2]. By way of custom, the women there have more power over men and so have to bring the men over to [Location 2].
The Tribunal asked whether there were local police in [Village]. She stated that they were not so effective. There is always bribery going on. Cases do not go any further. They have never had good results from the village court about their land dispute. She stated that she does not feel safe anymore in [Village] as a result of what has happened in the past.
The Tribunal queried why her husband could not protect her. She stated that they will not respect him. He is from another village. They do not listen to people who are not from [Village]. No one listens to him. He moves to town and when he has enough money, he then visits his parents and then returns. He does not stay in the one place. He moves and stays with his cousins and, once in a while, he stays with his parents.
The applicant said that she and her husband could not live with his parents. She said that if she moves to [Location], she will get sick. It happened to her once. They will use sorcery there. Her husband does not spend much time there at [Location]. He stays with his sister or stays at [Village].
She said that she is Christian. She believes in sorcery. Her husband is Catholic. He believes in sorcery. This prevents him from taking the applicant to [Location] because of sorcery there.
The Tribunal queried whether her children feel safe there. She stated not really. They pray that everything goes well. They advised their children not to move around too much. They advised them to go to school and come back to the house and not to move around too much in the village.
The Tribunal put to the applicant that having her husband around her would keep her safe. The applicant stated that some things have happened to her. For example, there have been signs like black cats and black dogs in front of her house. There were other things that were there which could be seen as sorcery. They believe that if they see black cats or black dogs that there are bad spirits around. They can physically feel their bodies going weak when the bad spirits are around.
Her fear is the sorcery that her cousins will carry out on her, to make her ill or worse. They will use sorcery charms to make her ill. These are her fears. She fears the threat of sorcery that she believes will harm her. She fears that she will suffer serious harm from bad charms created by her cousins. She has also been physically hit on the day of the altercation in May 2023. Apart from being hit on that day, she has not been physically harmed by her cousins since. She stated that she fears that she will suffer serious harm from her cousins by way of their sorcery towards her.
The Tribunal asked why she believes that they have the ability to create bad charms that might harm her. She believes that they can do it because they have seen what their family have done for 20 to 50 years before. It is in their background. The village are aware of what her cousins are capable of doing. If these cousins visit people, something happens.
The Tribunal put to the applicant that she was associating people getting sick when her cousins visit them, and sorcery. She confirmed this to be the case.
The Tribunal then referred to the articles provided by the applicant. The applicant stated they were from local newspapers. The applicant agreed that these articles were written about people who were caught in the act of sorcery. The village as a community then decide what to do to persons who are caught in the act of sorcery or are suspected in participating in sorcery. They then decide on what punishment should be administered here. The Tribunal queried, if this is the case, why her cousins are not being held to account by the village, and the village leader for their sorcery. The Tribunal put to her that her village knows that her cousins are into sorcery. The Tribunal queried that she has shown photographs of what a village can do if someone is suspected of sorcery. The Tribunal queried why her cousins have not been taken to task by the village. The applicant stated that the village had been bribed by their cousins. They had been bribed and feared for their lives. She stated that nobody in the village seems to speak up. She stated that there is also corruption and bribery involved in sorcery. If someone is caught, and nobody does anything to them, it means that people have been bribed. Money is given quietly as a bribe in cash. Therefore, if her cousins were caught, they just have to pay money as a bribe and the problem will go away.
The applicant then stated that her father had died as a result of being murdered. He had been found dead by her mother. She said that it was one of her cousins who killed her father. She stated that he was assaulted near the toilet at the back of the house.
The applicant found out about this after 6 years. Her nephew on her mother’s side caught the cousin who killed her father but could not say anything because he was given some money. He did not say anything about her father’s death until 6 years later.
The Tribunal asked the applicant whether there were any accusations that she was a sorcerer. She said there was not. The Tribunal confirmed with her that she was not fearing being accused of sorcery. The applicant stated that she was afraid because of the deaths of her family members one after another in a short period. There were three deaths in the family in three and half weeks. They were from the same family. The Tribunal queried whether she believed that they died because of sorcery or bad sorcery charms. She stated that they believed this. The applicant stated that her elder brother was well and fit while he was walking back from his sister’s house when he suddenly collapsed and died. Her adopted daughter from her small sister died not long afterwards. After the deaths of her mother, brother and adopted daughter, they believed that a sorcerer was involved with this.
The Tribunal asked whether a doctor or a coroner did an autopsy at the village. She stated that there was no way to do an investigation of the bodies in the village. The Tribunal queried that they could have died of natural causes. The applicant stated only her mother could have as she had died of old age. She did not think this was the case of her adopted daughter and big brother who died in the village. They were sudden deaths that they did not expect.
The applicant stated that it seems like her big brother was strangled. It seemed like the adopted daughter had been hit. She had bruise marks. The Tribunal queried how she knew that her big brother had been strangled. She stated that he collapsed after seeing his sister. She stated that he had been strangled. The Tribunal queried who saw him being strangled. The applicant stated that nobody saw him being strangled. She said that a medical officer saw him holding his throat as if he was asking for water and then he collapsed. The Tribunal queried why the medical officer would be walking by at that time that her brother was collapsing. The applicant stated that he would walk past that place at times to do things. It happened that he was walking past the place where his brother was collapsing. He thought her brother was thirsty as he was holding his neck. He grabbed water to give to her brother, but he had already collapsed and dropped dead. This occurred between 7pm and 7:30pm. It was the medical officer who called the applicant. When asked whether anyone saw the applicant’s brother being strangled, she said no. She said that the medical officer observed strangle marks on the neck. The Tribunal queried that the medical officer did not see anyone strangling her brother. She confirmed that he did not see anyone strangling her brother.
The applicant confirmed that she only provided her mother’s death certificate. She said that there was a confirmation of death from the village Councillor. She had said this had been sent. The Tribunal indicated that no letter from the village Councillor had been sent to the Tribunal from the applicant, only a letter from the [Ward] member about the house being partly damaged. She said she thought she had sent a death certificate and a statement of confirmation of the deaths of her brother and adopted daughter.
The Tribunal confirmed that the only documents that had been sent by her were news articles, a death certificate of her mother and her statement. (It had previously confirmed with her that a letter from the [Ward] Member had been sent about her house being partly damaged). The Tribunal stated that there was nothing else that had been sent. The applicant asked whether the Tribunal received a reference from her Church. The Tribunal confirmed that it had not received this reference either from her. The applicant stated that she had a copy of this letter confirming the deaths of her brother and adopted daughter on her mobile. The Tribunal then asked if the applicant might show the Tribunal a copy of this letter. The applicant did.
The Tribunal read a copy of this letter on her mobile. It read what was on her mobile phone loudly for the purposes of the hearing tape (and for the benefit of the applicant). The applicant gave the Tribunal her mobile which had a copy of a letter from the Honourable [Mr A], [Ward] Member. The letter read: “Confirmation of Death. To Whom it may concern. I, [Mr A], Ward Member for [Village], write to your good office, on behalf of the [applicant’s] family, to confirm and identify two deaths in their family, late [Mr J] that was at the age of [Age]years old and passed on the date [date].02.23. He died in the village and was buried the same day…[Mrs B]…was [Age] years old and passed on the date [date].02.23. These two deaths are from the same family…”. The Tribunal then put to the applicant that the letter was confirmation of the death of her mother and brother and nobody else. The applicant confirmed that this was the case. It indicated that there was no confirmation of the death of her adopted daughter. The applicant stated that she died later.
The Tribunal indicated that the letter was dated 22 March 2023. The Tribunal asked why it would be dated then. She stated that this was the time that they required confirmation of deaths. The Tribunal indicated that the letter said nothing about [Mr J] being strangled. It just confirms that he had died. The applicant stated that there is no death certificate. The Tribunal indicated that she was relying on the word of someone who has told her that it looked like that he might have been strangled. She said yes. The Tribunal indicated that this had not been put into any death certificate. The applicant confirmed that it had not. She stated that it had been told to her by a medical officer. He was the first on the scene after her brother died. She stated that it was at nighttime, and he could not see properly. The Tribunal invited her to send a copy of that letter to the Tribunal after the hearing.
The Tribunal asked if she could identify on her mobile the reference from the Church. The Tribunal summarised what was written in the reference letter aloud for the benefit of the applicant and the hearing tape. The letter was from the [Town] Church. It stated that she attended the Church on a regular basis. That they knew her. That she was active in activities there and in reading scripture. They were happy that she had found her way to [Town]. That the applicant would be an asset wherever she went in Australia. They attested to her character, honesty and commitment. The Tribunal invited her to send a copy of that letter to the Tribunal after the hearing.
The Tribunal indicated that, apart from the letter written from the [Ward] Member that her brother and mother had died, and apart from what she has said at the hearing about her adopted daughter dying, there is nothing to indicate that the deaths resulted from unnatural causes, or that there might have been foul play involved. The letter only confirmed that her brother and mother had died and confirmed the dates of their death. The Tribunal indicated that her concern was only that they had died close together and unexpectedly and that she believed that this could be because of sorcery. The applicant confirmed that this was what she believed. She said it was not normal. If they were sick, they would have expected that they died because of an illness.
The Tribunal indicated that it can only consider the evidence before it, including her oral evidence. The Tribunal indicated that it might be, from the evidence before it so far, that her family members have died close together and, while unexpected, that natural causes have been the reason for the deaths of her family members and that sorcery or foul play had nothing to do with their deaths. The applicant stated that from her observation she believes that it was sorcery that killed her family members. She can accept that her mother died from natural causes. But she could not accept that her brother and adopted daughter died naturally. They died unexpectedly. She against stated that she believed that it was because of sorcery. She then stated that, because of the land dispute, she believed that they were trying to do this because her big brother was heir after her father passed away. If they can remove her brother then it would be easy for them to do the same to the rest of the family.
The Tribunal again asked the applicant whether this was the crux of her claims. She said it was.
The Tribunal then read s 423A of the Act to the applicant. The Tribunal indicated that she had already provided evidence of a man who put together the application without her consent and that it would go away and consider that evidence as it relates to s 423A of the Act. The Tribunal indicated that it will go away and consider whether her explanation was reasonable.
The Tribunal indicated that it had read to her at the start of the hearing how one can be assessed either as a refugee or under complementary protection. It indicated that it had to be satisfied that there is a real chance she will suffer serious harm or a real risk that she will suffer significant harm if returned to Papua New Guinea. It needed to consider this in the context of her evidence that her fear is that sorcery, in whatever form that takes, will be responsible for serious harm or significant harm that will occur to her if she returned. She stated that this was her fear.
The Tribunal indicated that the articles that she provided to the Tribunal related to people who were accused of sorcery, and that this did not apply to her. The applicant confirmed that she was not being accused of sorcery at all.
The Tribunal put to her that if she believed that she would not be harmed because of her sorcery, she would return to her village to be with her family. The applicant confirmed that she would return to her village if she did not have this belief. This is what she believes due to her culture.
The Tribunal asked if there was anything else she wanted to raise with the Tribunal or that she would like the Tribunal to discuss with her. She stated that if she was comfortable with it, she would have followed up with the application. She had to find out herself. It was not what she wanted to add in the beginning. She did not ask for help from anyone. The man who helped her disappeared. The Tribunal indicated that it would consider this evidence which she raised in her statement, and in other submissions at the hearing.
She stated that she feared to go back to Papua New Guinea because of her claims. She does not feel that her village is safe anymore. It is going from bad to worse in her village.
The Tribunal indicated that it does not have any country information that suggests that sorcery is causing sickness or deaths of people. However, it provided the applicant further time to provide further evidence in support of her claims. The Tribunal indicated that it had no evidence that might show that sorcery was responsible for illness or death of people. It indicated that it had to work with information and evidence before it.
The Tribunal ended the hearing by stating that [Organisation 1] had asked for a postponement on her behalf but were not her authorised representative at the time and could not provide a commitment to act for you. The Tribunal had considered the request in light of this information and other material before it.
The Tribunal asked whether she felt that she had a fair hearing. She stated that she did and thanked the Tribunal for a “good hearing” for her. She also thanked the interpreter for assisting her.
The applicant asked if she needed anything else to provide in the future. The Tribunal confirmed again that she had 14 days to provide anything further in support of her application.
Post Hearing material
The applicant provided an unidentified photograph of someone who appears to be deceased being placed on one’s side. There is no identification of who the person is, how they died and information about the photograph as to why it is relevant to the applicant’s claims.
FINDINGS AND REASONS
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1]
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

Mere speculation cannot establish a ‘well-founded fear’. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[2]
[2] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
The Tribunal has considered the applicant making new claims as provided in her new statement and at the hearing. Having considered the applicant’s reasons for raising new claims and evidence after the primary decision was made, the Tribunal is satisfied that the applicant has a reasonable explanation as to why the new claims and evidence was not presented before the department delegate. It is satisfied that that applicant relied solely on a third party to compile and lodge her protection visa and that the claims presented by this third party were done so without her consent. The Tribunal comes to this finding based on the applicant providing a reasonable explanation to the Tribunal at a reasonable time after the primary decision was made. Having considered s 423A of the Act, the Tribunal does not draw an unfavourable inference as to the credibility of the applicant’s new claims or evidence under s 423A only.
The Tribunal still has concerns, however, on other aspects of the applicant’s new claims and evidence, based on the applicant’s own evidence provided to the Tribunal, and the Tribunal will provide an analysis and reasoning of its concerns of the new claims and evidence later in the decision.
The Tribunal has considered the applicant’s evidence at the hearing that she resiles unequivocally from her original claims made in the protection visa application. It asked the applicant on several occasions whether she wanted to resile all her claims originally made. She said she did. The Tribunal asked whether she wished to discuss any of the original claims made in her protection visa application. She said she did not. It asked whether she was relying solely on the new claims made in her statement provided to the Tribunal. She said she was. Accordingly, the Tribunal finds that the applicant has resiled her original claims made in her protection visa application and wishes to only rely on the new claims made as per her statement presented to the Tribunal. Accordingly, the Tribunal will make an assessment and findings on these new claims only below.
The applicant’s new claims are that, if she was to return to [Village], [Area], Central Province, Papua New Guinea (PNG), she fears that she will be targeted by her cousins through sorcery carried out by them, arising over a dispute of ownership of land which has been in the applicant’s family since at least 1997.
She claims that her father died in 1997 but not of natural causes. The consecutive deaths of her mother, brother and adopted daughter in early 2023 in her village have heightened her fears, with the deaths of her brother and adopted daughter being “unexpected” and “sudden”. She believes that by removing her brother who was the “heir” to the family home after her father died, that her cousins are sending a message that they can do the same thing to the rest of the applicant’s family. The applicant claims that the deaths of her brother and adopted daughter have been the result of sorcery by her cousins in [Village] and that her life now has been threatened by her cousins as well. An altercation in May 2023 between her family and cousin’s family resulted in her family home being partially destroyed and the applicant being hit on this one occasion. Her cousins are well-known in the practice of sorcery in the village. The applicant has not been accused of sorcery in any way and has given clear oral evidence that she is not making any claims that she fears being accused of sorcery or suspicion of sorcery.
The Tribunal has considered the applicant’s new claims and the evidence presented to the Tribunal and particularly her claims that the deaths of her father, brother and adopted daughter were due to unnatural causes and related to her cousins’ intervention. The Tribunal finds that the applicant has not provided any evidence at all that there has been any intervening event or third-party interference resulting in the deaths of her father, brother and adopted daughter. The applicant has drawn her own conclusions of sorcery or unnatural causes being involved in the deaths of her three family members through third party evidence that was told to her, and not directly drawn from what she had heard or seen.
The applicant confirmed at the hearing that she considered her mother having died of natural causes and not due to any intervening event. Given the evidence before it of the copy of the Medical Certificate of Death of her mother (which points to her death by natural causes), and the applicant’s own oral evidence that her mother died of old age, the Tribunal finds that the applicant’s mother died naturally of “[named] Disease” [in] February 2023 in [Village].
While the applicant has not provided a physical copy of the letter from the [Ward] Member, the Honourable Member [Mr A] (dated 22 March 2023) when given the opportunity to do so by the Tribunal, the Tribunal has had the benefit of seeing it and reading it from her mobile device at the hearing. On this basis, the Tribunal accepts that the letter was written by [Mr A] on 22 March 2023, and that it identifies the applicant’s brother aged [Age] years, as dying on [date] February 2023 and her mother, aged [Age] years, as dying on [date] February 2024. It accepts the applicant’s oral evidence that the two persons referred to in that letter were her deceased brother and mother respectively. The Tribunal notes that the letter, in support of her claims from her Ward Member, did not in any way state that the brother died because of unnatural causes or an intervening event or third-party interference. It simply concluded that the two persons named in the letter were from the same family. The Tribunal notes there are no further documents relating to the deaths of the applicant’s brother. There is no other evidence provided by the applicant in support of her claims that the death of her brother was “unexpected” and “sudden” and caused by unnatural causes.
The Tribunal notes that the applicant has not provided any written evidence or documents that her adopted daughter has died. The Ward Member of her village has made no mention of the death of her adopted daughter in his letter. Notwithstanding that there is no mention of the applicant’s adopted daughter’s death in the Ward Member’s letter, the Tribunal is willing to accept that the applicant’s adopted daughter passed away [in] March 2023, as mentioned in her new statement and at the hearing. There is no other evidence provided by the applicant in support of her claims that the death of her adopted daughter was “unexpected” and “sudden” and caused by unnatural causes.
The applicant suspects that sorcery is involved from her cousins because the deaths of her brother and adopted daughter were too close together and “unexpected” and “sudden” and possibly related to the land dispute. The Tribunal does not accept this on the evidence before it. While the Tribunal has considered her evidence that it is not possible to obtain full medical reports in her village, the Tribunal does not accept that she could not obtain a Medical Certificate of Death of her brother and adopted daughter, given that she was able to obtain a full Medical Certificate of Death of her mother who died in [Village] where she claimed her adopted daughter and brother also died. The Tribunal would have expected, on this basis, that if her brother and adopted daughter had died from unnatural causes or because of intervening event or third-party interference that the applicant would have provided this in support of her claims that her brother and adopted daughter died from unnatural causes or from an intervening event or third-party interference.
Moreover, the Tribunal provides substantial weight on the applicant’s evidence that she had asked the Ward Member for confirmation of death (and relied on this letter in support of her claims). Given that the Ward Member confirms the deaths of her brother and mother (but makes no mention at all that they died of unnatural causes or from an intervening event or third-party interference), the Tribunal finds that the brother did not die from unnatural causes or from any intervening event or third-party interference. Given the same letter relied upon by the applicant as confirmation of deaths, the Tribunal finds it significant that the Ward Member did not mention the adopted daughter’s death or that she had died from unnatural causes or as the result of an intervening event or third-party interference. It therefore finds that the adopted daughter did not die from unnatural causes or from any intervening event or third-party interference.
The Tribunal does not accept the applicant’s evidence that a medical officer had told her that he was in the vicinity on the same night when her brother suddenly collapsed and that he saw her brother holding his throat and that he observed strangle marks. There is no medical certificate provided by her stating this (the Tribunal relies on its findings that she could obtain a Medical Certificate of Death for her mother who died in the same village) nor is this mentioned at all in the Ward Member’s letter of confirmation of death of her brother which she relies on. The applicant’s reliance on the Ward Member’s letter confirming the death of her brother does not mention at all that the brother was strangled. The Tribunal has no doubt that if there were any suspicious circumstances surrounding the death of her brother that this would have been mentioned in the Ward Member’s letter. The applicant’s claims here are not supported at all by her own evidence provided.
The Tribunal does not accept the applicant’s evidence that she was told that her adopted daughter died as a result of a beating. There is no medical certificate provided by her stating this (the Tribunal relies on its findings that she could obtain a Medical Certificate of Death for her mother who died in the same village) nor is the death of her adopted daughter mentioned at all in the Ward Member’s letter. The applicant’s reliance on the Ward Member’s letter confirming the death of her brother does not mention the death of her adopted daughter. The Tribunal has no doubt that if there were any suspicious circumstances surrounding the death of her adopted daughter that this would have been included in the Ward Member’s letter. The Tribunal does not accept the applicant’s explanation that her adopted daughter was not included in the letter because “she died later on”. The Ward Member’s letter is dated 22 March 2023. Her statement states that her adopted daughter died [in] March 2023. Therefore, the Ward Member would have had the knowledge of the death of her adopted daughter at the time of writing his letter. The applicant’s claims here are not supported at all by her own evidence provided.
Given its findings above, the Tribunal does not accept that the applicant’s adopted daughter and brother died of unnatural causes or an intervening event or third-party interference. It does not accept that the closeness and suddenness of the deaths of the applicant’s brother and adopted daughter has been because of sorcery or an intervening event or third-party interference administered by her cousins. The Tribunal does not accept on the evidence that closeness in time and suddenness of deaths of the applicant’s brother and adopted daughter is the result of sorcery by her cousins targeting the applicant and her family.
The applicant has claimed that black cats and black dogs in front of her place created bad spirits for her and her family. While the applicant might have her own belief that black cats and black dogs being present in front of her place create bad spirits for her and that these bad spirits might have contributed to the deaths of her family members, it finds that this claim does not indicate a real ground for believing that the applicant is at risk of persecution in any way. It is mere speculation on the part of the applicant which does not amount to a “well-founded fear”.
The applicant raised at the hearing that she believed that her father had been killed in 1997. This was not raised in her new statement which she claimed were the new claims that she was relying on. She provided no medical certificates to support this claim, even though she was able to provide a Medical Certificate of Death for her mother in the same Ward. There was no mention of this death in the Ward Member’s letter that she relied on. She gave evidence that her nephew knew about her father’s murder but did not tell the applicant for six years after her father died. Given this complete lack of evidence provided by the applicant supporting this claim and given the vagueness of the evidence provided at the hearing by the applicant where she relies on the communication of a person who tells her of her father’s purported murder 6 years after the claimed event had occurred, the Tribunal does not accept that her father died as a result of being murdered by her cousins or dying from unnatural causes as a result of her cousin’s sorcery.
The Tribunal has considered the online news articles provided by the applicant relating to how a number of different villages have reacted and punished persons accused of or being suspected of participating in sorcery or witchcraft. The same news articles are quite explicit in the punishment that can be carried out in local communities. The applicant has made it clear in her oral evidence that she is not being accused at all of participating in sorcery or witchcraft. In this regard, while the Tribunal accepts that persons who are accused of or suspected of being involved in sorcery or witchcraft can be punished at a local community level, the Tribunal finds that they are not relevant to the applicant as far as they relate to a person being accused of sorcery of witchcraft, a claim not made by the applicant.
Given that these online articles provided by the applicant herself indicate that persons associated with sorcery or witchcraft are punished at a community level and that such punishment is carried out in different villages across Papua New Guinea,[3] the Tribunal finds that such news articles (provided by the applicant herself) contradict her own oral evidence at the hearing that her cousins are well-known in the village for participating in sorcery and are not punished by the villagers in [Village]. The google links provided by the applicant indicate that villages mete out their own punishment on persons accused of sorcery, albeit, at times, quite ruthlessly.[4] Yet, the applicant has given evidence at the hearing that her cousins operate with impunity when carrying out sorcery and remain unpunished. This is inconsistent with the country information provided by the applicant herself which show that villages carry out their own punishment collectively.
[3] For example: “Sorcery-related violence a modern problem” – The National; Google Image Result; “Village interrogating sorcery suspects”, PNG Daily, Dominic Kemzil, 23 August 2020, Google Image Result
[4] “Tribal Foundation calls for an end to sorcery related violence in PNG”, Google Image Result; “Papua New Guinea Christians urge to practice faith on sorcery”, Google Image Result
Furthermore, the Tribunal does not accept the applicant’s explanation that her cousins can carry out sorcery within the village because all the village is afraid of them and that they have paid off all the villagers. The applicant has provided evidence that [Village] has 5000 to 6000 people which is a very sizable village. The Tribunal does not have before it any evidence, and it therefore does not accept, that the applicant’s cousins have the means to bribe 5000 to 6000 villagers in [Village]. Moreover, the applicant has not provided any evidence at all that indicates that her cousins have any profile in this large village to instil fear in them all to remain quiet.
Given that she has provided her own country information that villagers mete out their own punishment to persons accused of sorcery or witchcraft and that this occurs across Papua New Guinea and that this is entirely inconsistent with her own evidence that villagers have known of her cousins’ sorcery for a very long time and are fearful of them and have been bribed to do nothing to them, and given the implausibility of her evidence that her cousins could pay off or instil fear in an entire village of 5000 to 6000 people, the Tribunal does not accept that the applicant’s cousins participate in sorcery and that they have carried out sorcery against the applicant and her family in any way.
The applicant has claimed that there has been an ongoing land dispute between her family and her cousins’. She indicated that this dispute has been ongoing, at least since her father’s death in 1997. She provided evidence that this dispute went back prior to her father’s death. The applicant provided evidence that this land dispute has resulted in tension between the two families. However, they have co-existed beside each other as neighbours since all that time, and at least for 27 years. Only once has this tension flared up where the applicant states she was hit by her cousins and part of her house was destroyed in that one altercation between her family and her cousins’ family in May 2023.
The applicant has provided a letter from the Ward Member which confirms “a complaint” from the applicant about “a land dispute” which resulted in “their house” being “partly destroyed” and that the applicant’s family and her cousins are “neighbours to each other”. The Tribunal accepts from this evidence that an altercation occurred on 6 May 2023 between the applicant and her cousins about a land dispute. It can accept that, as a result of the alteration that took place, the applicant was hit in the heat of the moment and that part of the house was destroyed.
However, on the applicant’s own evidence, it was only the wall on the outside of the home that was destroyed and that it has now been rebuilt by her family members. There are presently her brother and his family living there, along with her husband and her [children]. The children continue to live there permanently and go to High school nearby. Her brother travels back and forth between the family home and his wife’s village. Her husband travels back and forth between the family home and other areas. The applicant has provided evidence that her cousins now ignore her family and her family now ignore her cousins’ family. She provided evidence that they all live their own lives. This evidence together shows the Tribunal that the family are co-existing together as neighbours albeit without trust for one another. There has been no other evidence provided that tension has flared up in violence to force the applicant’s family away from their home temporarily or permanently except for the few days in May 2023 when they needed to live with other family members in [Village] before returning to their home. On the evidence before it, the Tribunal does not accept that the applicant is in danger in any way from her cousins over a land dispute that has existed for longer than 27 years. The Tribunal finds on the applicant’s evidence that her family do not fear suffering harm in any way given that they have not moved from the home which is situated alongside the very cousins she states want to harm her and her family over a land dispute.

It finds that the applicant has embellished her claims somewhat in claiming that her family move around. When asked at the start of the hearing by the Tribunal who presently lives in her home, she made it clear and without hesitation that her husband, their [children], her brother and his family all live at the family home. Moreover, when the Tribunal asked about why she moved back and forth between Port Moresby and her village, she stated that she would go to the markets to earn money so that she could attend the “[Organisation 2]” Conference in [City, Australia], Australia which she really wanted to go to. Moreover, she gave evidence that she raised this money with the other women who were also attending this conference. She also stated that she resided and slept in her village at night. The Tribunal therefore does not accept that she moved around because she feared her cousins. It finds in the evidence that she resided and lived in [Village] (and did not take up residence in [Suburb] as stated in her statement) up until the time she had to depart for Australia. It finds on the evidence that she regularly came into Port Moresby to raise money with other women so that she could attend a Church Conference in Australia and that she went back home again to reside and sleep in [Village] at her home which is only about one hour 15 minutes’ drive away from Port Moresby (on the applicant’s evidence).
Given the Tribunal’s findings that it does not accept that the applicant’s cousins participate in sorcery, or that they have been responsible for the deaths of the applicant’s family members or that they have targeted the applicant’s family because of a land dispute, or that they have targeted the applicant specifically, the Tribunal does not accept that a real threat was made to the applicant’s life by a [cousin]. There is no evidence before the Tribunal to indicate that there is real chance that any threat would be carried out by her cousins and that the applicant is at risk of suffering serious harm.
The Tribunal has considered the letter from the [Town] Church. It can accept that the letter was written as it relates to their perception of her as an active Church member there. However, it has no relevance to the applicant’s claims as they relate to her fear back in [Village]. Accordingly, it places no weight on it as it relates to her own claims back at home.

100. The Tribunal has considered the photograph that was provided by the applicant post-hearing. It is of an unidentified person, probably male, who has been placed on his side. There is no information of who this person is, when and how he became deceased and why this photograph is relevant to the applicant’s case. Accordingly, the Tribunal places no weight on this photograph at all.
101. Given the Tribunal’s findings above, it finds that there is not a real chance that the applicant will be harmed by her cousins or through sorcery or by any other method or means were she to return to Papua New Guinea.
102. Having considered all the applicant’s claims above both individually and cumulatively, for the reasons set out above, the Tribunal finds that there is no real chance that, if the applicant were to return to Papua New Guinea, she will suffer serious harm for reasons of race, religion, nationality, political opinion or membership of a particular social group (therefore s 5J(1)(b) of the Act criteria has not been met). Looking into the reasonably foreseeable future, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined under s 5(J) of the Act. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Complimentary Protection
103. The Tribunal has therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea, there is a real risk that the applicant will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
104. The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[5] For the same reasons discussed above, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm from her cousins or through sorcery or by any other method or means as a necessary and foreseeable consequence of her being removed to Papua New Guinea.
105. The applicant has not claimed to fear harm for any other reason if she returns to Papua New Guinea and the Tribunal finds that no other protection claims arise on the accepted facts.
[5] MIAC v SZQRB [2013] FCAFC 33
CONCLUSION
106. 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).

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

109. The Tribunal affirms the decision not to grant the applicant a protection visa.
Clyde Cosentino
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 4192

27 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction