2405906 (Refugee)

2405906 (Refugee) [2024] AATA 2995 (12 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2405906
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Tony Caravella
DATE:12 July 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 12 July 2024 at 10:51am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – political activism – irregular or failed National Election in 2022 – vote counting – support for United Resource Party (URP) candidate during the election – low level of political activities – decision under review affirmed
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 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 31 October 2023. The delegate refused to grant the visa on the basis of finding the Applicant is not a refugee as defined in s 5H(1) of the Act and therefore is not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act. The delegate also found the Applicant does not face a real risk of significant harm as defined in s 36(2A) of the Act. Further, the delegate found the Applicant is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the Applicant as provided for in s 36(2)(b) or s 36(2)(c) of the Act.
The Applicant appeared before the Tribunal on 15 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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Applicant satisfies the relevant criteria in the Act which would give rise to Australia owing protection obligations to the Applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Applicant’s protection claims
In his Application for a protection visa (Form 866) which was lodged with the Department of Home Affairs, the Applicant sets out his biographical and other relevant details together with his protection claims. I extract the following background details, and the Applicant’s protection claims, from that Form 866.
Background
The Applicant declares he was born in [year] in [location], Enga, Papua New Guinea (PNG). He declares he married [in] January 2019. He declares he is a citizen of PNG and declares he holds no other citizenship or nationality. He declares his ethnic group to be Melanesian and his religion is declared as ‘Apostolic Church (Australia)’.
The Applicant claims he departed PNG leaving from Port Moresby [in] December 2022 and entered Australia on the same day. He arrived in Brisbane. He declares he entered as the holder of a seasonal work visa.
He declares he has not travelled to any other [country]. As to his work history, he declares he lived in a subsistence way in his village and marketed crops he grew for cash in the local town. He claims he completed high school at the [School 1] and claims he also completed a skill/trade qualification as a [Occupation 1] at [a] Technical Centre.
Protection claims
The Applicant declares he left his country feeling fortunate through the Pacific Labour Mobility Scheme. He claims the reason he left his country is that he had been falsely accused of involvement in the last National Elections (NE-2022) Fraud. He asserts that he nearly lost his life in [Town 1] of Enga Province.
The Applicant claims machete-wielding men who are tribesmen or supporters of a 2022 National Election contestant nearly slashed/chopped the Applicant into pieces. He claims he dodged this and escaped death.
The Applicant claims he experienced political-related violence or threats. He claims they are targeting or planning to kill him and the contestant is now behind bars and they want to murder the Applicant in retaliation.
The Applicant claims he did not seek help within his country. He declares that due to the complexity of the situation, he was feeling vulnerable and he could not allege any individual person would harm him. He claims the whole community becomes involved to commit crimes during these times and ‘it becomes ethnical (sic) sort of thing’.
The Applicant claims he cannot move or relocate to another place. He states the only places to move to are to towns and cities, however in the nearby villages and hamlets they would still be able to locate and kill him. He claims the towns and cities are for people with money who can afford land. He claims people with job experience are able to find employment in the government and private sector. He claims people like him who have lived all their life in the village doing a subsistence way of living cannot relocate. He also claims if he had a family member living in the cities, he would go to live with them, however, he claims he has none.
In reply to the question in the Form 866 which asks what the Applicant thinks will happen to him if he returns to PNG, the Applicant writes that he thinks he is already a dead person. He claims the law system in PNG is very weak and the government is corrupt. He claims the only people to protect him are his tribesmen but they will only take the retaliation process after the Applicant is killed. He claims that in the retaliation process, the whole community gets involved. He claims he does not want this to happen and he does not want to go back so his community can be safe too.
The Applicant’s evidence and claims at the Tribunal hearing
Background
At the opening of the hearing, the Applicant provided a number of documents, in particular:
·A photograph of a treed field in which there is a fire from which emanates white smoke;
·A screenshot from Facebook The Enga Politics Page with a photograph of a group of men holding firearms and a headline, ‘[Headline 1]’;
·A photograph of the front page of The National newspaper showing the headline ‘[Headline 2]’;
·A screenshot (with photos) of a posting on Facebook by a [Facebook user];
·A screenshot (with photos) of a posting on Facebook titled Pilikambi LLG/Upper Lagail 2022 and onwards intending candidates;
·A photograph of a blood-covered body of a man who appears to be deceased.
The Applicant told me these documents show some of the incidents that occur at his home area. He told me he obtained the photos from Facebook. One of the photos depicts fires in a location and he described this showing the tribal violence in his area. One of the photos is a photo of a deceased man; he said it is one of his tribesman who was killed ‘due to a political issue’. He told me the deceased’s name is [Mr A] and he was killed during violence during a by-election. The Applicant told me he was in PNG when [Mr A] was killed. In respect of a photograph of men carrying rifles, the Applicant told me usually the leader supplies weapons during election time. He told me the photos were taken around the 2022 election and the 2023 by-election when tribal violence began.
The Applicant confirmed the biographical details declared in the Form 866 are correct, including his place of birth and that he is married. He said his wife lived in the village with his mother in [Village 1]. His mother passed away in 2015 so his wife moved and lives with her family in [Village 1]. He is in contact with his wife once a fortnight or once a month. She has not been harmed. He has a [age]-year-old daughter and she is healthy and unharmed.
The Applicant told me he first arrived in Australia in December 2022 and that he had never travelled out of PNG before then. In PNG he worked in farming. He described it as subsistence farming on land that he owns. He told me no one works his land since he has come to Australia.
The Applicant told me he received training in [Occupation 1] at [a] Technical Centre. However, as he was unable to find paid work in this field, he returned to farming.
Protection claims
The Applicant told me that in the 2022 election, the candidate Philip Kikala’s people determined to harm him. He told me the sitting member of parliament was Tomait Kapili (‘Kapili’) and that the Applicant claimed he was ‘like a spokesman’. He said he supported the sitting member and the member represented the United Resource Party (URP). He told me he was not actually a member of the URP but he became involved when a hospital was built in his village as a result of Kapili’s efforts. The Applicant said Kapili brought service to his village of [Village 2] and that the Applicant supported Kapili at the election.
When I asked for detail of what support he gave in Kapili’s campaign, the Applicant said he only spoke to people and told them that Kapili brought service to the village. When I asked where he spoke to people, he told me ‘in public’. When I asked if someone from the URP, or someone associated with Kapili’s campaign, gave him instructions, or whether he reported to anyone, the Applicant said he did not report to anyone but just spoke to village people about the service the sitting member was bringing to the village. He told me Philip Kikala’s people observed the Applicant’s actions and want to harm him. He does not know the names of those who want to harm him.
The Applicant said the election in 2022 failed so a by-election was held, however the Applicant was in Australia in the lead-up to the by-election. He said he helped in the 2022 campaign and was active from January to March 2022. He told me the by-election in 2023 was won by Amos Akam.
When I asked whether he suffered any harm at the hands of his claimed enemies, he told me they tried to cut him with a knife but he ran to the police. He told me he was supporting Kapili by counting ballot papers when more than 10 men arrived. One man held the Applicant and the other tried to cut him but he managed to run away. This occurred in a place he described as ‘headquarters’ and he said it was a government building in [Town 1]. He said the men chased him but he was able to make it to the police station which was located nearby. They stopped chasing him when he ran into the police station. The police then took him to a bush area where his people are located; it is an area called [Area 1]. He remained there for 2 months then he returned to his village, and after that he went to Port Moresby for 1 month and then travelled to Australia. In Port Moresby he completed what he described as ‘a traineeship for the visa’.
When I asked if he had any contact from Kikala’s supporters since the attempted attack, the Applicant told me he has not, however he added he still fears they will harm him because he supported Kapili. He said all the killings are political.
I asked if he thought the police could provide protection in [Village 2] or [Town 1] or [Village 1]. The Applicant said the police are based in [Town 1] whereas [Village 2] is a village. He said the law is weak and killing is normal. When I put it to him that he was given protection when he ran into the police station, the Applicant said the police station was close by and the police are located in towns, whereas in the villages killing is normal.
Upon asking why he could not relocate to Port Moresby, the Applicant told me in cities like Port Moresby people work and have money, however he said he is a ‘village man’. I put it to him he appears to have skills, including in [Occupation 1], and asked why he thinks he could not get paid employment. He replied saying in Australia one can work on a farm and get paid, however, in PNG they plant for subsistence. He said there is limited work in PNG. He told me he is currently not working in Australia. He applied for work rights but has not been granted them yet. He lives off the assistance of friends and the Red Cross gives him $400 per month.
In relation to relocation to Port Moresby, the Applicant said it is a big city and people are educated and work, but he is a village man. When I asked whether he knows people who have moved to Port Moresby, he told me he does. He said if one has family there one can get accommodation, however he does not have family there.
I asked the Applicant what he meant in his claim where he states he was falsely accused of involvement in the last National Election. He replied that ‘they tried to attack me’. Upon asking whether he had any involvement with, or responsibility for, the ‘failed election’ in 2022, he said he did not.
The Applicant told me Kikala was eventually imprisoned but then became sick and was eventually released from prison. He told me in 2007 Kikala won the election, but in 2012 he lost and he was a candidate again in 2022.
Upon asking whether he fears harm for any other reason if he returns to PNG, he told me ‘just politics’.
His tribe is the Warin tribe. He told me Kikala is a member of a neighbouring tribe. They are interrelated but they fight over politics. At election time different groups support different candidates. He said his village is in the Highlands and that when elections come people fight and people try to tell them how to vote. He said, ‘It’s a control thing.’
I asked him about the letters he had submitted. In relation to the letter from [Mr B], he is from the same district but from another tribe and witnessed the 2022 election. He said [Mr B] is a lawyer. Upon asking how he knows [Mr B], the Applicant said [Mr B] is from one district and he knows the situation. He told me he has met [Mr B]. When I asked for more detail about when he met and what dealings he had with [Mr B], the Applicant said, ‘I had several contacts in PNG. He is a lawyer and a witness.’ When I asked how [Mr B] would know the Applicant is a ‘strong supporter of Tomait Kapili’, the Applicant told me ‘He knows I’m a supporter. He came around and I talked to him.’
In relation to the statement from [Mr C], the Applicant told me he is a village man and is the spokesman and leader from his village. The Applicant told me he asked [Mr C] to write the statutory declaration. When I asked how [Mr C] would know about his activities, the Applicant said he is an eyewitness.
In relation to the photographs and postings he submitted, the Applicant confirmed he is not depicted in any of the photographs or mentioned in any of the postings.
In relation to the letter from the police (dated [in] January 2024), the Applicant said this was written by the policeman who witnessed him run into the police station when he was being chased. He said this was the first time he has met the particular policeman. He told me when he ran into the police station a report was made and later he obtained the letter.
Regarding the letter from [Mr D], the Applicant said he works in [District 1]. He described him as his friend.
In concluding his evidence, the Applicant told me he is happy and free in Australia whereas PNG is dangerous and killing is normal and it is not safe. The Applicant confirmed there was only one attempted attack on him and no others. He added they were talking about killing him. He repeated that in his culture killing is normal and they do not let go.
I referred the Applicant to the delegate’s decision where the delegate referred to money being sent to him in Port Moresby from Australia in 2020 and 2021 and invited him to explain. The Applicant told me there was a pastor whose son lives in Australia and he would send the Applicant money, and the Applicant told me he stayed in Port Moresby in 2020 for 2 months while a church was being built. The money was sent to him for use in building the church. After the church was built, he returned to [Village 2]. The Applicant told me his wife went to Port Moresby to do missionary work and to build the church in 2019. He told me the name of the church is [Church 1]. The pastor who raised money was based in Queensland, however, he does not know him well.
Country of reference
I observe from the Department’s case file that the Applicant submitted a copy of his passport issued by the relevant authority in PNG [in] 2021 as documentary evidence of his identity and nationality. The delegate was satisfied that the evidence before him/her demonstrated the Applicant’s identity and evidenced that the Applicant is a citizen/national of PNG. There is no evidence before me to cause me to doubt the delegate’s conclusion in relation to the Applicant’s identity and nationality. Accordingly, I proceed on the basis that the Applicant is a citizen of PNG. I accept the country of reference and the receiving country in this appeal is PNG, and I accept that the Applicant faces removal to that country if his protection/non‑refoulement claims are rejected.
Does the Applicant face a real chance of persecution – s 36(2)(a)?

Based on the evidence before me, I accept the Applicant first entered Australia [in] December 2022 and entered Australia as the holder of a GD-403 visa which was valid [until] September 2023. I also accept that he has not travelled to any other [country], and I accept too his claim that he lived in a subsistence way in his village and marketed crops that he grew for cash in the local town. I accept his claim that he completed his formal education and a skill/trade qualification as a [Occupation 1] at [a] Technical Centre.
In relation to his claim to have been involved in political activity in his home area and his claim that he faces a real chance of serious harm amouinting to persecution for reason of his political activism, based on all the evidence before me, I do not find this proposition to be credible, having regard to the following.
Based on the evidence before me, including the Applicant’s sworn oral evidence, I do not accept the Applicant was ‘falsely accused of involvement in the last National Elections (NE‑2022) Fraud’. In particular, when I asked the Applicant about this particular element of his claim, his response was ‘they tried to attack me’ and he then confirmed that he had no responsibility for the failed election and fraud. Based on this, and based on all the evidence before me, I find the Applicant is not a person of adverse interest to any individual, or to any organisation or authority in PNG, for reason of the irregular or failed National Election in 2022 in PNG.
In relation to the incident where he claims while involved in vote counting he was targeted for harm in [Town 1] at the district headquarters of Enga Province, I proceed by giving the Applicant the benefit of the doubt and accepting the Applicant was at the relevant place where ballots were being counted at the relevant time. I also accept, based on general COI[1] reporting on the occurrence of incidents of inter-party rivalry and conflict at election times, that the vote counting operation was attacked by 10 men and the Applicant was threatened by a man wielding a knife. I also accept that the Applicant was able to escape that attack and found his way to a nearby police station where he was given protection and was removed from the area. However, based on all the evidence before me, I do not find this incident was a part of a larger plan, or part of an ongoing targeting of the Applicant for serious harm. Based on the evidence before me, including what I find to be the Applicant’s comparatively low profile and low level of political activity in his area, I do not accept the Applicant was considered or perceived to be an activist with an opposition profile such that he would be targeted and pursued for serious harm or elimination in PNG now or in the reasonably foreseeable future if he returned to his country. Based on the evidence before me, I do not accept it suggests the Applicant’s claimed political enemies are targeting or planning to kill him, or that because the particular candidate was imprisoned they now intend to murder the Applicant in retaliation.
[1] For example, in para 2.21, DFAT Country Information Report – Papua New Guinea (6 September 2022)
I have considered whether the Applicant’s circumstances are such that he faces a real chance of serious harm due to tribal factors and tribal conflict. At the hearing, he claimed that there is a complexity in the situation and that his whole community becomes involved to commit crimes during times of political conflict and ‘it becomes ethnical sort of thing’. I accept that the COI reports on the operation of payback and traditional ‘compensation’, and the system of social kinship, welfare and mutual obligation known as Wantokism derived from PNG’s traditional tribal‑based society.[2] While I accept that these traditions, customs and forces operate in PNG, based on the evidence before me, including the conclusion I have drawn on the Applicant’s profile and low level of political activities, I do not accept that there is a real chance that he would be targeted for harm either for his political activities or political opinion, or for reason of his particular tribal origin, to the extent that the two factors mix and interrelate.
[2] See DFAT ibid, page 4
I have considered the documentary evidence submitted by the Applicant prior to the hearing and at the hearing. I have listed the items that fall into this category earlier in this Decision. The documents include photographs and Facebook postings and reports which the Applicant submits support his assertion that there is political and other conflict in his area in PNG and that this supports his contention that he faces serious, including fatal, harm, if he returns to his home area in PNG. While I accept that some of these reports and photos may indicate conflict and instability in parts of PNG, and in particular depict conflict that occurs surrounding elections, I find, firstly, the particular documents do not name or identify the particular Applicant. Secondly, having regard to my assessment of the comparatively low level of the Applicant’s political activities and activism, I find the documents overstate the Applicant’s political activism and risk of harm and therefore place little weight on their evidentiary value and reject the proposition that this documentary evidence, or the total evidence before me, suggests the Applicant faces a real chance of harm amounting to persecution now or in the reasonably foreseeable future, if he returns to PNG.
In relation to his claimed political activities, I have considered the Applicant’s claim that he supported the sitting member of parliament for the URP in the 2022 election and that, as a result, the supporters of candidate Philip Kikala determined to harm the Applicant. However, based on the evidence before me, I do not accept the Applicant accrued any significant profile as a political activist such that he faced a real risk of targeting for serious harm based on his political activities. I find the Applicant’s evidence is that he was not a member of the URP but simply supported the policies of the URP and was impressed by such things as the building of a hospital in his village which he attributed to the efforts of the sitting member Kapili and the URP.
I have considered the Applicant’s evidence when I asked him for detail of his claimed activities in support of Kapili’s campaign. I find the Applicant’s evidence is that he did nothing more than speak favourably about the service that Kapili brought the village. I found his evidence in relation to the extent of his speaking and campaigning to people to be vague and not indicative of a high level of campaigning or activism. I found that his claim that he spoke to people ‘in public’, and that he did not campaign under instructions by the party, and nor did he report to anyone, all indicate the Applicant did not play a significant role in the election campaign such that he would be identified as a person who should be considered an opposition activist who ought to be targeted for serious harm or elimination.
I have considered the Applicant’s evidence where he told me at the hearing that he has had no contact from Kikala’s supporters since the attempted attack in around March 2022. While I accept the absence of any contact from Kikala’s supporters is not determinative on the question of whether they have a continuing adverse interest in him, I find this is one further relevant factor, amongst all the evidence, to support a conclusion that the Applicant’s claimed enemies do not hold an adverse interest in the Applicant such that he would face a real chance of serious harm of the kind contemplated in s 5J(5) of the Act if the Applicant returns to his country now or in the reasonably foreseeable future.
I find the Applicant’s evidence is that the only fear of serious harm he fears in PNG is ‘just politics’. I have considered his claims of fearing harm due to politics, and also his claim that he faces a risk of harm due to the tribal rivalry and the mix of tribal issues and political affiliation, however, based on all the evidence before me, I find the Applicant faces no real chance of harm amounting to persecution for any reason claimed, or for any other reason that might arise on the facts of the case.
I have considered the Applicant’s claim made at the hearing where he concluded his evidence by telling me he is happy and free in Australia whereas PNG is dangerous and killing is normal and it is not safe. I have considered the COI on the security situation in PNG and accept that it reports the existence of violent and petty crime in PNG,[3] and I also accept the COI reports on tensions between PNG’s hundreds of different tribal groups.[4] I accept that DFAT also reports that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence,[5] however, having regard to all the claims and evidence presented by the Applicant in this case, I do not accept the Applicant is an activist in inter‑tribal conflicts or that he faces a real chance of serious harm as contemplated by s 5J(5) of the Act if he returns to his home area in PNG now or in the reasonably foreseeable future.
[3] See DFAT ibid, para 2.26
[4] Para 2.27, DFAT ibid
[5] Para 2.32, DFAT ibid
I have considered the evidence before me regarding the delegate’s finding that money was sent to the Applicant in Port Moresby from Australia in 2020 and 2021 and that it was in relation to funding the building of a church in Port Moresby in 2020. I accept the Applicant’s explanation of this as given to me at the hearing and find nothing in the funding or building of the church, and the Applicant’s involvement in it, that gives rise to a real chance of the Applicant being targeted for harm of any kind by anyone now or in the reasonably foreseeable future in PNG.
For all these reasons, I do not accept the evidence in this case indicates the Applicant meets the requirements specified in s 36(2)(a) of the Act.
Does the Applicant face a real risk of significant harm – s 36(2)(aa)?
As I have found the Applicant does not meet the criterion in s 36(2)(a) of the Act for refugee protection, I must consider whether the Applicant meets the criterion pursuant to s 36(2)(aa) for ‘complementary protection’.
Section 36(2A) provides that ‘significant harm’ exists where a non-citizen will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the non-citizen; or the non‑citizen will be subjected to torture; or the non-citizen will be subjected to cruel or inhuman treatment or punishment; or the non-citizen will be subjected to degrading treatment or punishment.
I have considered all the evidence and claims before me individually and cumulatively and have set out my assessment of whether there is a real chance of the Applicant being harmed in any way for the reasons claimed, if he is removed to PNG. For all the reasons I have set out in the preceding paragraphs, I am not satisfied that there is a real chance of the Applicant being harmed in any way falling within the definitions of significant harm for any of the reasons advanced in his claims. Having regard to all the evidence and circumstances in this case, and for the same reasons discussed in the foregoing assessment of his refugee protection claims, I am also not satisfied that there is a real risk the Applicant will suffer ‘significant harm’ on any basis identified or cognisable if he is removed from Australia to PNG.
For the foregoing reasons, I find the Applicant does not meet the requirements prescribed in s 36(2)(aa) of the Act.
Conclusions
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
The Tribunal affirms the decision not to grant the Applicant a protection visa.
Tony Caravella
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 2995

12 July 2024

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

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