2435432 (Refugee) - [2025] ARTA 2203

2435432 (REFUGEE) [2025] ARTA 2203 (8 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2435432

Tribunal:General Member V. Hewaarachchi
Date:8 August 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 08 August 2025 at 11:55am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – imputed political opinion – election violence – race – tribal violence – physical assault – fear of killing – attack on home – loss of customary land – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 September 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 national of Papua New Guinea, applied for the visa on 18 July 2024. The delegate refused to grant the visa on the basis that there was no real chance or real risk of the applicant suffering serious or significant harm upon return to PNG and therefore the applicant failed to meet the criteria for a grant of a protection visa in s36(2)(a) and/or s36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 30 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tok Pisin and English languages.
BACKGROUND
The applicant is a citizen of PNG. He arrived in Australia as a holder of a visitor (Subclass 600) visa [in] March 2024 and applied for a protection visa on 18 July 2024 attaching a document titled “My Story” dated 15 April 2024. He entered Australia with a passport issued in his name [in] 2022. The department has not raised any concerns regarding authenticity of the applicant’s identity document or the veracity of his claimed identity. I accept the applicant’s identity is as claimed and find the receiving country for the purposes of this review to be PNG.
Evidence before the Department and the Delegate’s decision
The applicant made an application for a protection visa on 18 July 2024 with a brief statement outlining the applicant’s experiences in PNG dated 15 April 2024. On 22 August 2024 the department wrote to the applicant seeking further information. The time for response concluded at the end of Friday 20 September 2024. On Monday 23 September 2024 a delegate for the Minister for Home Affairs decided to refuse to grant of a protection visa to the applicant on the basis that the applicant had provided insufficient information to satisfy the delegate of the credibility of the applicant’s claims.
The written evidence before the delegate contained the following claims:
a.The applicant is a national of PNG and his home area was Jiwaka province. He is from a village called [Village 1].
b.On [a day in] July 2022, a Saturday evening, the applicant lost everything when his house was burnt down, his customary lands and freedom was taken from him. This occurred in the context of election violence as he decided to support a candidate who was not endorsed by his tribesmen.
c.The applicant’s brother was killed [the following day]. Also, in the context of tribal violence.
d.The applicant and his immediate family then fled to his wife’s home village where the applicant remained in hiding for 19 months.
e.Eventually he was discovered, and his wife was threatened at her workplace by his tribesman who told her to remove him from her house.
f.The applicant then fled to Australia in search of safety.
The applicant was notified of a decision to refuse him a protection visa on the first weekday after the day on which the applicant was required to respond by to the s56 notice.
The applicant was not invited to attend and interview to expand on his claimed fears of harm and for the delegate to test those claims. It is unclear whether the delegate was aware of the powers available to them to invite the applicant to present oral evidence. There is no detail or explanation as to the basis on which the delegate exercised their discretion not to invite the applicant to present oral evidence at an interview in circumstances where the delegate was not satisfied that there was sufficient information and evidence before the department to establish the applicant’s claims. This is particularly concerning in circumstances where the applicant had advanced claims to fear persecution on account of his race and political opinion, provided some (though limited) information regarding the applicant’s political allegiances, identified the sources of alleged persecution, and provided some detail in relation to past harm.
Evidence before the Tribunal
The applicant provided the following to the Tribunal prior to his hearing:
a.A photo of the lower half of a person laying down with what appears to be a deep (almost all the way through) cut to the [specified body part].
b.A photo of what appears to be a burnt house.
c.A copy of the applicant’s letter statement to the department dated 15 April 2024.
d.An 8-page statement containing further information in relation to his tribe, clan and subclan, tribal violence in PNG, and his family situation.
The applicant provided clear, detailed and compelling oral evidence at the hearing. His oral evidence is discussed, to the extent it is relevant, in the reasons and findings section of this statement of reasons below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant engages Australia’s protection obligations as a refugee or under the complementary protection provisions set out above. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The overall reliability of the applicant’s evidence
The applicant provided a clear and detailed account of his experiences in PNG. He was forthcoming and gave spontaneous and detailed responses to questions. His oral evidence was consistent with his written evidence, and he was able to explain the significance of the general country information he provided in support of his claims. The applicant did not exaggerate or embellish his claimed fears of harm or his past experiences. His responses to my questions were measured and thoughtful. The applicant’s assessment of the risk of harm was well considered and convincing. I find the applicant’s testimony in relation to his past experiences in PNG and future fears of harm to be reliable.
I am not able to verify that the photographic evidence provided by the applicant are photographs of his brother or his previous home. They simply show what appears to be the final stages of a burning structure containing metal sheets and the lower half of a person with a large and [deep wound]. In the absence of compelling oral evidence and explanation from the applicant I would not have been satisfied that the pictures are of the applicant’s brother and his house. However, the applicant provided a detailed explanation of the origin and relevance of the pictures. He explained why the pictures were taken, who took them and why he had them. This coupled with the overall reliability of the applicant’s oral evidence I accept that the photographs are of his former home and late brother.
The applicant’s family background and tribal affiliations
The applicant said that he was born the [named village] near a town [Town 1]. He explained that [Town 1] was in the Western Highlands region at the time of his birth, before the province of Jiwaka was created. However, since the creation of Jiwaka, [Town 1] now rests within Jiwaka. The applicant said that his father’s village is called [Village 1] and that is where he grew up. He said that he worked as [an occupation 1] for [number] years after completing his studies, at various [locations] in the region.
He said that he continued to reside in [Village 1] until he was displaced in 2022. The applicant explained that though he worked in multiple [venues] in his region and stayed at the respective [locations] during the [week], he always came home to his village in [Village 1] on the weekends and [holidays]. He said that the last [venue] he worked at was in [Village 1] and is called [employer name]. The applicant explained that he was in hiding in his wife’s village in [Village 2] for 19 months before coming to Australia, but does not consider his wife’s village to be home. I find that the applicant’s home area is Jiwaka province and specifically, [Village 1].
The applicant explained that he belongs to the [Sub-clan 1] of the [Clan 1] of the [Tribe 1]. He said that the [Tribe 1] is one of the largest tribes in the region and there are approximately [number] tribesman who belong to the [Tribe 1], of which [number] belong to the [Clan 1], and his sub-clan comprises of approximately [number] people. The applicant explained that inter-clan tensions are high and that intra-tribe fighting often breaks out due to various reasons including politics. His evidence was that the catalyst to the events of [the day in] July and [the following day] were political, but the animosity is deeply rooted in inter clan violence.
I accept the applicant’s family background and tribal affiliations are as claimed.
The applicant’s political opinion and past political activity
The applicant said (consistent with his statement on 15 April 2024), he supported [Candidate A] a candidate in the general elections in 2022. He explained that [Candidate A] was not from [Village 1] and belong to the [Clan 2] whereas the people of his village were [Clan 1] and many supported a local candidate [Candidate B]. I asked the applicant why he supported [Candidate A] over [Candidate B], the applicant said that he preferred the policy focus of [Candidate A], which centred around public education and health care. When asked if education was not publicly funded in PNG, the applicant explained that tertiary education is not publicly funded and the lower levels required additional funding. When asked how his candidate intended to pay for such promises the applicant explained that [Candidate A] had a plan to fund tertiary education through [a named programme] which was funded by the National Government and provincial revenue. The applicant considered that this was a better use of public money and would assist more people.
The applicant said that [Candidate B] ran on a platform of infrastructure, agriculture and law and order. He said that this did not appeal to him as much, and that the reason why the local villages supported [Candidate B] is because he was from their local area. The applicant explained that during the election campaign he was verbally abused whenever he was on podium with [Candidate A] and when he had the microphone, but he was not physically threatened and did not fear for his safety. He explained that he continued to campaign for [Candidate A] through the election campaign.
I accept the applicant’s claimed political opinion and past political activity to be true.
Alleged past harm
The applicant said that he remembers [the day in] July 2022 as the day he lost everything. [Details deleted.] He explained that he supported a candidate, [Candidate A], who was not from his region and this was a position that a lot of the local people considered unfavourably. He explained that [after] the election results were declared violence started to break out around the region. He said that he was at home with his wife and children in the afternoon of the [day in] July year? when [number] men with machetes and sharp knives came to his house.
The applicant explained that as the abuse began, his wife started to scream. Hearing the screams, a neighbour, who was also a [leader 1] ran out and came to their aid. The applicant explained that often women and [specified leaders] are spared from violence. He said that the men walked away beyond where they could be seen when the [neighbour] intervened. The applicant said that the family took this opportunity to walk through a bush track. He said after waking for a while they ‘got on a PMV’ which is a form of public transport and made their way to his wife’s village.
The applicant said that the men who came to his house were not from his village, clan or tribe. He said that these men came from out of town and stayed with his tribesmen who did not support [Candidate A]. The applicant speculates that these men are hired by the other tribesman and explained that such arrangement is not uncommon as fighting clans often employ outsiders to come and fight for them. He explained that this happens regularly in the context of election violence as well as inter clan conflicts. His written evidence, citing various sources, supports this assertion.
The applicant explained that on [the following day] he received the devastating news that his brother had been murdered and his house had been burnt down. I asked the applicant how he received this information, he said another [occupation 1] who he worked with had called him to let him know. He said that intra-tribe and clan violence had erupted significantly. He said that the [neighbour] had taken photos in the hope of documenting some of the aftermath in case there was some hope of the authorities intervening in the future. However, the applicant said that this turned out to be fruitless exercise, as is the usual case, the authorities were completely ineffectual particularly in the context of election related and/or inter clan conflict. The applicant’s assessment of the effectiveness of the police is confirmed by independent country information including the most recent country information report on PNG by DFAT which states:
The effectiveness of the RPNGC is limited by resource and staffing constraints, as well as low morale and high rates of absenteeism. Police officers are routinely restricted from investigating crimes due to shortages of vehicles and fuel. When crimes take place in remote rural areas, it is often difficult for police to investigate, make arrests and collect evidence due to challenging geographic factors and weather conditions.[1]
[1] ^{^[1]} DFAT, Country information report on PNG, July 2025, 5.4
The applicant said that his sub clan, [Sub-clan 1], were again divided into two during the election times. He said that, while the catalyst for the violence was the election result, inter and intra-clan violence was what continued the fighting. I asked the applicant if he could have sought refuge with people from [Candidate A’s] clan. The applicant explained that they have their own fights and unable to assist others who do not belong to their tribe. He said that his clan was larger and covered [number] municipal councils whereas [Candidate A] was smaller and spanned across [fewer].
The applicant said that in a day of violence his faction of his sub-clan was chased out of their homes on [the day in] July 2022. He said that he understands that they remain displaced across PNG and are constantly on the move to try and avoid harm, but they are all at risk as the numbers of their enemies are far greater. The applicant explained that his own situation is demonstrative of this, where he was forced to flee to his wife’s village where he remained in hiding for 19 months but was eventually discovered and forced out again.
The applicant provided great detail and was forthcoming in his responses to my questions in relation to the above. He accepted that not every member of a clan is at risk during inter-clan conflicts, however he explained that he was at greater risk for several reasons. First, his faction of his clan was on the losing side in 2022 when the violence erupted, and his faction consists of very few people compared with their enemies. Second, he was seen as a key figure and a catalyst for the eruption of violence due to his vocal support for an outsider during the election in July 2022. Third, he is now overseas and sends money to his wife, this will be known to others as people in PNG talk and gossip, this in turn will place a greater target on his back as he will be seen as a person capable of assisting his clansmen. Fourth, as he is an educated man, the rival clansmen consider him an asset to his clan and therefore needs to be neutralised.

I have considered the publicly available country information on PNG including the most recent DFAT report dated 25 July 2025. I have also had regard to the previous DFAT country information report on PNG dated 6 September 2022. Where the new DFAT report contradicts a matter stated in the previous DFAT report, I have preferred the new report when assessing the chances of future harm. However, where the latest DFAT report is silent on an issue clearly addressed in the previous report of September 2022 and is not contradicted by any other evidence before me, I have accepted those matters to be true.
The available country information confirms that tribal conflict is triggered by various factors including, as detailed by the applicant, political reasons including during elections.[2] As the applicant noted, whole tribal groups are rarely involved in the fighting[3] while often conflict erupts as single isolated flashpoint[4] there are instances where grievances between tribal groups extend beyond the initial geographic area. The level of violence associated with inter-tribal conflict has worsened considerably since 2020.[5] This country information is consistent with the applicant’s account of his past harm.
[2] See for example: DFAT, Country information report on PNG, July 2025, 2.74; and Deborah Alois, Worsening Trend of Violence in PNG, 27 February 2024; and Professor James Chin, More Instability Ahead for PNG, 21 March 2024.
[3] DFAT, Country information report on PNG, July 2025, 2.76
[4] Ibid 2.74
[5] Ibid 2.76.
Given my findings in relation to the reliability of the applicant’s evidence and that the available country information appears to support that his version of events could plausibly occur, I accept the applicant’s evidence in relation to the past harm as set out above.
Fears of future harm
The applicant fears harm at the hands of rival clans and sub-clans who remain in conflict with his clan. This is particularly the case in circumstances where the applicant attempts to return to his home area. The applicant explained, and I accept, that his profile is elevated for the reasons set out in paragraph 33 to a level where there is a real chance of serious harm to him in all areas of the country. He claimed that this is because the rival clansmen are also dispersed across PNG due to various reasons including other conflicts and they are constantly on the look out for his sub-clan, and in particular those considered to be leaders or influential in the sub-clan. He explained that the prevalence of social media combined with the fact that people in PNG often talk about others, particularly when outsiders are in their area, means that it is just a matter of time before he comes to the attention of a rival clansmen. He explained that people organise and support each other through kinship structures in all parts of PNG, and this in turn created a situation where people are generally aware of sub-clans to whom others belong, or at a minimum are curious in regarding others’ tribal ties.
He fears that he would be attacked and perhaps even killed if he is discovered by rival clansmen.
Does the applicant satisfy the refugee criterion for protection?
For the reasons given above I accept the applicant’s evidence in relation to the past harm he experienced and his fears of future harm. I accept his evidence that his group of the [Sub-clan 1] have been displaced from [Village 1] and Jiwaka more broadly. I accept that there is a real chance of physical harm including torture and/or being killed if he attempted to return to his home area of [Village 1] or another part of Jiwaka. Given the potential harm includes torture or being killed I am satisfied that such harm falls within the meaning of serious harm set out in s 5J(5) of the Act.
I find two essential and significant reasons for the motivation for such harm is his ethnicity and political opinion, by virtue being a member of the sub-group of the [Sub-clan 1] and his political opinion in support of [Candidate A]. Therefore, I am satisfied that the applicant’s circumstances satisfy the requirement at s 5J(4)(a) of the Act as the essential significant reason for the harm includes those listed at s 5J(1)(a) of the Act.
I am satisfied that such harm is a result of systematic and discriminatory conduct and not the mere impact of circumstances which the applicant may face on return to PNG. The feared harm is systematic as it is not a ‘random, non-selective’ act but intentionally inflicted upon the applicant, and the conduct is discriminatory as the harm is targeted and directed at the applicant due to his ethnicity belonging to the [Sub-clan 1] and political opinion in support of [Candidate A].
I am satisfied that there is a real chance of serious harm in all areas of the country. Publicly available country information indicate that relocation does not ameliorate the risk of violence, and I am not satisfied that there is an area within PNG where the chances of serious harm to the applicant is at a level below a real chance. At first blush, there appears to be a notable difference in the assessment of effectiveness of relocation (or safe areas within PNG) between the two most recent DFAT country information reports on PNG.
a.The most recent DFAT report (the 2025 DFAT report) assesses that “migration to urban areas may mitigate risks posed by inter-tribal conflict” [emphasis added]. When considering this assessment, I turn my mind to two issues. First, the word “may” is an expression of possibility often requiring context and additional information to ascertain degree. The 2025 DFAT report does not state how, and in what types of situations, such mitigation may occur. I find in the applicant’s circumstances he is not likely to be a beneficiary of such mitigation due to his elevated profile for reasons stated above and the country information described in 42(b) below. Second, the degree of mitigation and whether it is sufficient to reduce the chances of harm to level lower than a real chance of harm.
b.The previous DFAT Country information report on PNG dated 6 September 2022 (the Previous DFAT Report), contains the following:
“Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present.”[6]
[….]
“Exacerbated by the widespread take-up of mobile phones and social media, and the presence of diaspora from other parts of PNG (most especially in Port Moresby which one source referred to as ‘Little PNG’), those who relocate are often recognised in their new home and this information will typically be communicated to their place of origin. This may present a continuing threat to those attempting to escape violence”[7]
While the above are notable omissions from the 2025 DFAT report, I do not consider anything in the 2025 DFAT report to expressly indicate that these circumstances have ceased to exist in PNG. For example, there is no indication that mobile phone use has decreased, there is no indication that the diaspora populations of various regional tribes no longer reside in urban areas. The applicant’s evidence was that rival tribesmen who seek to do him harm are spread across the country. I accept the applicant’s evidence that social supports through kinship structures and a general level of interest in outsiders coupled with access to phones and social media means that there is a real chance the applicant will come to the attention of his would-be persecutors in all parts of the country. In the applicant’s circumstances, I am not satisfied that the chances of serious harm to him are lower than a real chance of serious harm in any part of the country, including in urban areas.
[6] DFAT, Country Information Report on PNG, 22 September 2022, p.g12
[7] Ibid pg 24
Having regard to the publicly available country information,[8] I accept the applicant’s oral evidence that the state security apparatus including the police and courts of PNG are unable to provide him with adequate protection for those measures to be considered effective protection measures. I am satisfied that effective protection measures (for the purposes of s 5J(2) of the Act and s 5LA of the Act) are not available to the applicant in PNG.
[8] See for example DFAT, Country Information Report on PNG, 25 July 2025, page 27 and 28.
I am satisfied that there are no reasonable steps the applicant can take to modify his behaviour to reduce the chance of harm to a level that is less than a real chance. That is because, those who seek to harm him now are motivated by his past actions (in his support for [Candidate A]) and because of his ethnicity.
Conclusion
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of Hearing: 30 July 2025
Representative: N/A
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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