1712070 (Refugee)

1712070 (Refugee) [2021] AATA 1041 (22 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1712070

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Brendan Darcy
DATE:22 March 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 22 March 2021 at 4:08pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – single women – separated women subjected to an unresolved bride price – race – tribal groups – gender based violence – abduction – fear of killing – bride price – discriminatory denial of state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant S v MIMA (2004) 206 ALR 242
MIMA v Khawar (2002) 210 CLR 1
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 Immigration and Border Protection on 18 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Papua New Guinea (PNG), applied for the visa on 2 March 2017. The delegate refused to grant the visa. This was on the basis that while the delegate acknowledged the applicant would be likely to face a degree of hardship due to gender inequality issues in that country, the delegate was not satisfied that the applicant will experience a real chance of harm which would constitute the requisite threshold of persecution.
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 (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
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant was born om [date] in the Western Highlands Province of Papua New Guinea and claims to be a citizen of Papua New Guinea.
A copy of the applicant’s Papua New Guinean passport issued in Port Moresby [in] 2016 is on the Departmental file ([number])
A copy of the applicant’s Certificate of Birth Entry indicates the applicant was born in [District 1] in Western Highland Province on [date], that her mother was a subsistence famer and that her father was a [local official]. It was issued [in] 2016.
The applicant arrived in Australia [in] December 2016 while holding a Class FA Subclass 600 visa.
On 3 March 2017, the applicant applied fore a Class XA Subclass 866 protection visa and granted an associated bridging visa on 7 March 2017.
The applicant submitted a signed statutory declaration dated 27 April 2017 outlining her claims for protection. In summary it mentioned the following:
·     The applicant has been systemically targeted with violence since 2008 after her husband, [Mr A], abandoned her and her [children].
·     The applicant claimed that she is at risk of harm due to her being a single woman and as well as on the basis of her tribal membership and her father’s political profile;
·     The applicant suffered attempted rape and murder from her brother in-law, [Mr B];
·     The applicant was subject to attempted rape and murder by an enemy tribe, [Tribe 2];
·     The applicant’s son was abused by an enemy tribe member, [named], and the applicant was verbally abused regarding the accusations that caused the abuse on her son
·     • The applicant was subject to attempted rape by [Mr C] in October 2016
·     The applicant fears members of the opposition party of her father will harm and kill her because her cousin was killed in 2008.
·     The applicant claimed to be a member of [Tribe 1] from [District 1] (a certificate issued by a Church Pastor is attached to application);
·     The applicant had [another] child to a de facto relationship in
·     The applicant fears returning to Papua New Guinea on the basis she will be at risk of further harm, abduction, torture, sexual assault, violence and forced marriage by the parties mentioned above;
·     Relocation was not possible as she would subjected to threats of rape and sexual and violent crimes directed at as a young woman;
·     The police in her home country are happy to resolve issues by customary means like paying compensation. They are also corrupt and can be manipulated by bribery very easily;
·     Additionally, as a single woman, it would be very difficult for the applicant to survive in other parts of the country and would be unable to access basic services or subsistence.
The applicant was interviewed by the Department on 5 May 2017 in which she provided an additional claim that she had been abducted in 2012 by a rival tribe, [Tribe 2].
The applicant also made a number of mental health and related claims arising from past trauma she has experienced. Attached was a medical report from [a named doctor] outing her medical issues, including that she suffered an injury to the head from [Mr B]; memory loss. The applicant also has chronic Hepatitis B and appears to have low immunity as a result.
The applicant’s family composition included her [specified family members] residing in the Western Highlands of Papua New Guinea.
The applicant has [children] with her former husband and [another] child with a de facto relationship. It was claimed the child has been customarily adopted by one of the applicant’s [relatives].
The applicant submitted a letter from [a named] Police Station indicating a complaint about abuse and an attempted rape was registered at that station in which the applicant and her children’s lives and safety were threatened. No suspect is mentioned in the letter.
Another letter dated [in] November 2016, is a confirmation that official complaint was lodged by the applicant. This provided more details such as her husband had abandoned her and their children in 2008; that her ex-husband moved to New Ireland Province; that her brother-in-law assault her and attempted rape; and that she was rejected by her husband’s family. The last incident occurred [in] October 2016 when a man named [Mr C] threatened her and tried to kidnap as part of a sexual assault.
The delegate refused to grant the applicant on a protection visa on 18 May 2017.
On 7 June 2017, the applicant applied for the delegate’s decision to be reviewed by the Tribunal without the decision recorded attached.
On 16 March 2021, the Tribunal received a 12-page statutory declaration signed and dated by the applicant elaborating on her earlier 2017 written claims.
On 17 March 2021, the applicant’s representative provided a summary of the treatment received by the applicant by a clinical psychotherapist; and threats conveyed towards the applicant via [social media], by her ex-husband.
At the scheduled hearing on 18 March 2021, the applicant provided evidence and presented evidence as to the reasons she was owed Australia’s protection obligations. She was assisted by an interpreter in the Tok Pisin (English-based creole spoken throughout Papua New Guinea) and English languages. She also assisted by her appointed [representative].
There are no non-disclosure certificates attached to the applicant’s Departmental file.
Country information
The most recent DFAT country information report on Papua New Guinea, dated 10 February 2017, states the following about the status of personal status and women in that society.
Personal Status Laws
3.12 Both District Courts (see ‘Judiciary’) and Village Courts (see ‘Traditional Mediation Systems and Customary Law’) have the authority to make decisions in family law matters, including in cases of family violence, family disputes over bride price or custody of the children of unmarried parents and parents married by custom. However, in many instances courts are not used or are subservient to traditional customs. Some traditional PNG customs permit parents to sell or give away their daughters for forced marriages – often to wealthy men and leaders – to settle debts or as peace offerings, leaving the women (or underage girls) vulnerable to domestic servitude. Women sold into polygamous marriages may be forced into domestic service for their husbands’ extended families.
3.13 Along with a number of other child protection and anti-violence measures, the Child Welfare (Lukautim Pikinini) Act (2015) mandates a minimum age of 18 for marriage. However, at the time of publication, the Act was yet to be implemented.
[…][…]
Women
3.31Article Five of the Constitution calls for equal participation by PNG’s women citizens in all political, economic, social and religious activities. The Office for the Development of Women, which sits within the Ministry of Religion, Youth and Community Development, has responsibility for women’s issues. The National Council of Women Act (2010) mandates the National Council of Women (NCW) to promote equal participation of women in society, and to support the government to eliminate all forms of discrimination against women. In addition to the NCW, several other civil society organisations are also dedicated to improving the situation of women in PNG. A number of women hold senior positions in business, the professions, and the civil service. At the time of publication, two government departments had female Departmental Secretaries.
3.32Despite official efforts to promote women, gender discrimination exists at all levels in PNG, and cultural barriers continue to place significant limits on the extent of female participation, including in politics (see above). In 2014, PNG ranked 158 out of 188 counties surveyed on the UNDP’s Gender Inequality Index (188 being the worst).
3.33Levels of violent crime against women are extremely high across PNG. Domestic or family violence is particularly endemic. The precise number of women who experience violence at the hands of a partner or family member is unknown – statistics are unreliable, and there is a social stigma in PNG about reporting. Human Rights Watch (HRW) published a report on family violence in PNG in November 2015 that found that the problem continued to be pervasive throughout the country. An earlier survey, published in 2013, found that 80 per cent of men in Bougainville reported that they had perpetrated physical and/or sexual violence against a partner. A March 2016 report from Medicins Sans Frontieres (MSF) detailed how a dire lack of protection mechanisms, a weak justice system and a culture of impunity endangered the health and lives of victims of violence even if they managed to reach medical care.
3.34The November 2015 HRW report found that police and prosecutors rarely pursued criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Police often demanded money from victims before they would act, or simply ignored cases occurring in rural areas. Police appeared reluctant to refer survivors for protection orders, and survivors who sought protection orders frequently encountered delays in the courts. When police did get involved in family violence, they typically mandated mediation and reconciliation for the couples involved.
3.35The November 2015 HRW report found there was a dire lack of services for people requiring assistance after suffering family violence. Most areas had no safe houses, and no area had enough. Qualified counsellors were largely non-existent, case management was rarely provided, legal aid was almost entirely absent, and there was no safety net to assist survivors, particularly those with dependent children, who needed temporary support and assistance to leave their abusers and become financially independent.
3.36The Family Protection Act (2013) makes family violence a crime, punishable by up to two years and/or a fine of PGK6,000 (AUD2,750). The Act also created new mechanisms, including establishing Family and Sexual Violence Units (FSVUs) in police stations and Family Support Centres in hospitals, to protect and assist victims of family violence. As of the publication date, 15 FSVUs were operational nationwide, staffed primarily by female RPNGC officers. All were under-resourced, and only able to operate for limited hours despite considerable demand for their services. Although the Act came into force in March 2014, as of the publication date it was yet to be fully implemented.
3.37A number of factors act as barriers to the full participation of women in the workforce in PNG. These include cultural stigma against women’s education or employment; gender discrimination; nepotism; the risk of violence and sexual abuse; high levels of female illiteracy; and low levels of female education. Restrictions to women achieving a good education include underage marriage, unwanted pregnancies, and lack of financial support. DFAT assesses that women across PNG have a high risk of societal discrimination due to long-standing traditional values and gender roles that restrict their ability to participate fully in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions.
3.38DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in the Highlands provinces are at particular risk, although violence against women occurs nationwide. Women subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
The applicant provided a copy of her Papua New Guinea passport which is on departmental file. Also, on same file is a copy of her Certificate of Birth Entry.
Based on these documents and without evidence to the contrary, the Tribunal finds that the applicant is a citizen of Papua New Guinea, that Papua New Guinea is the first and second applicants’ country of nationality for the purposes of the Refugees Convention, and that Papua New Guinea is their receiving country for the purposes of complementary protection.
Third Country Protection
With no evidence to the contrary, the Tribunal finds that the applicant has no right to enter or reside, either temporarily or permanently, any safe third country for the purposes of s.36(3) in the Act.
Findings
Unlike the delegate, it does not find that the applicant had a delay in applying for a protection visa as the applicant had applied before her three-month visitor visa had expired. Somewhat conflicting with the mental health assessment aobut the applicant’s weak memory, the applicant recalled very detailed and lucid information about her circumstances, including past traumatic incidents. This was despite her obvious nervousness at the hearing Overall, the Tribunal found a thread of consistency and detail in his written, documentary and oral claims for protection and that her claims did not go against known facts to be discerned from the available country information, including the most recent DFAT report on Papua New Guinea.
Based on this overall credibility findings and with particular emphasis form the very detailed statutory declaration dated 16 March 2021 and her oral evidence, the Tribunal accepts that the applicant belongs to [Tribe 1] from the Western Highlands; that her mother was a subsistence farmer and that father had built a career in local politics, including positions as [an official] of the Western Highlands Province. It is accepted that she has [siblings]. It is also accepted that she can speak, read and write in Tok Pisin and English and has limited education.
Critically the Tribunal further accepts the following about the applicant’s written and oral claims regarding the nature of the marriage and her relationship:
·     The applicant and her husband, [Mr A], married when she was [age range] years of age;
·     The marriage took place under coercive conditions whereby [Mr A] threatened to abduct and physically harm the applicant is she did not marry him;
·     The applicant’s own family did not want the applicant to marry [Mr A], but they did not protect the applicant due to the social dynamics of village life;
·     Under sufferance, the applicant ‘married’ [Mr A] and soon after he forced sex onto the applicant;
·     When she tried to stay with a co-worker to avoid [Mr A], he found the applicant either at work or a friend’s place;
·     As the applicant began raising children, [Mr A] continued to rape and physically assault the applicant;
·     When [Mr A] began an adulterous affair in 2005, he threatened to kill the applicant if she complained;
·     After the birth of their [number] child in [year], [Mr A] abandoned the family and as far as she knows he has been residing in [location] in New Ireland Province on an ongoing basis;
·     A year later, [Mr A’s] father pays ‘bride price’ for the applicant to her family which her father accepted. The bride price included [amount] PNG kina (or about [amount] Australian dollars) and [number] pigs. The delay in outlays for the applicant’s bride price was the ability of the [Mr A’s] father to pay.

The applicant does not claim that her ex-husband has returned to the Western Highlands to resume his relationship or to make further threats face-to-face. The marriage was effectively defunct but neither was there any divorce, either formally or customarily understood.
However, the lasting impact of the bride price had been the ongoing harassment by members of [Mr A’s] family. In particular, the applicant’s brother in law, [Mr B], began to demand her to marry him as it was understood that his family would not have to pay bride price given, they had already done so. His abuse towards the applicant includes striking her on the head with a spade or shovel in 2007, which has adversely affected the applicant’s memory. There was also home invasions and threats to cut the applicant. In effect, the brother in law was violently claiming his right to marry and to control the applicant as chattel based on his family’s understanding of bride price.
The applicant was last attacked by the brother in law in 2010 when she tried to move away from [Mr A’s] family at one of her father’s employees until January 2015. In 2015, the applicant moved to [Town 1] with her [children] to [work]; however, the harassment by the brother in law resumed.
Another element relevant to the claims about the impact of bride price on the applicant had been the applicant’s de facto relationship with a man between 2013 and 2014. Arising from this relationship was the applicant’s [next] son, who is now customarily adopted by the [applicant’s relative]. The applicant claimed at the hearing to have entered the relationship for male protection, at least in part, to shield her from the violence she feared single women and mothers are prone when they have no male chaperone or guardian. The Tribunal enquired into the reasons the relationship fell apart. The applicant answered that the applicant’s partner faced undue pressure on him due to the unresolved issues of bride price leading to demands he pay compensation to [Mr A] or face violent retribution. Furthermore, her father been party to the bride price and her mother he did not want the daughter in the village did want the relationship to last. The applicant also credibly claimed that she was not in a personal position repay [Mr A’s] family the compensation for the bride price.
Is there a chance of serious harm based on s.5J(1)(a) and 5L?
Having accepted the applicant is a separated woman subjected to the impact of bride price, the Tribunal has considered whether the applicant is a member of a particular social group.
The available country information indicates that women in Papua New Guinea in customary marriages may face societal treatment inferior to those in statutory marriages. The Marriage Act 1963 permits both statutory and customary marriage, creating a dual marriage system. Under the law, customary marriages are entered into in accordance with the customs of the couples’ respective tribes.[1] A thesis on marriage in the Seventh-day Adventist Church in PNG found that the most common relationship was living together, then customary marriage and then church marriage.[2] Although registering marriages has been legally required since 2014, many customary marriages are not formalised or registered.[3] Due to the lack of official documentation, it can be difficult to differentiate between a valid customary marriage and a de facto relationship.[4] While some areas’ customs traditionally required a husband or his family to pay a ‘bride price’ to the wife’s family[5], there are indications that ‘bride price’ customs are spreading to new areas.[6] The ‘bride price’ custom creates the perception that a husband owns his wife and can treat her as chattel.[7] Women wanting a separation, in areas with this custom, must repay their ‘bride price’, forcing many to stay in abusive relationships.[8]
[1] ‘Marriage in Papua New Guinea’, US Department of State, undated, accessed 6 December 2013, CIS26739. Also see: ‘Civil Registration (Amendment) Act 2014’, National Parliament of Papua New Guinea, September 2014, Section 9, CISEFCB23F7400
[2] ‘Church marriage faces challenges in PNG’ p.3 in Record (Wahroonga, NSW: Adventist Media Network) Vol.118, No 9, 4 May 2013, on Andrews University website, CIS36DE0BB2893
[3] ‘Bashed Up: Family Violence in Papua New Guinea’, Human Rights Watch, 4 November 2015, p.54, CISEC96CF13949; ‘Civil Registration (Amendment) Act 2014’, National Parliament of Papua New Guinea, September 2014, Section 9, CISEFCB23F7400
[4] ‘HIV, Ethics and Human Rights: Review of legislation of Papua New Guinea’, UNDP Pacific Centre, Regional Rights Resource Team SPC and UNAIDS, March 2009, p.23, CISE1310071718
[5] 'Trafficking in Persons Report. June 2019', United States Department of State, Office of the Under Secretary for Civilian Security, Democracy, and Human Rights, 20 June 2019, p.374, 20190621103235; ‘Country Reports on Human Rights Practices for 2019 - Papua New Guinea’, United States Department of State Bureau of Democracy, Human Rights and Labor, 11 March 2020, p.17 section 6, 20200312110546; ‘Country Reports on Human Rights Practices 2017. Papua New Guinea’, US Department of State, 20 April 2018, p.18 section 6, OGD95BE927331; ‘Bride price ceremony a norm’, The National, 1 November 2016, CX6A26A6E12092; ‘The bride price tradition in Papua New Guinea’, Gerawa, M, Women Across Frontiers, 22 November 2015, CX6A26A6E16639; ‘Bride price not blamed for PNG violence’, Australian Associated Press, 4 November 2015, CXBD6A0DE19378
[6] ‘Bashed Up: Family Violence in Papua New Guinea’, Human Rights Watch, 4 November 2015, p.56, CISEC96CF13949; ‘Country Report on Human Rights Practices 2016 - Papua New Guinea’, US Department of State, 3 March 2017, p.17, OGD95BE926861
[7] ‘Country Reports on Human Rights Practices 2017. Papua New Guinea’, US Department of State, 20 April 2018, p.18 section 6, OGD95BE927331; ‘Bashed Up: Family Violence in Papua New Guinea’, Human Rights Watch, 4 November 2015, p.55, CISEC96CF13949; ‘Human Rights in the Pacific. A situational analysis’, Pacific Community, 15 September 2016, p.101, CIS38A80123331
[8] ‘Amnesty International Report 2016-2017’, Amnesty International, 23 February 2017, p.291, NG2A465F54
The concept of “particular social group” was considered by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Applicant S v MIMA (2004) 206 ALR 242, where, after reviewing statements made in Applicant A, they stated (at [36]):
The determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A , a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.
Having regard to independent information relating to the situation for women in Papua New Guinea, the Tribunal is satisfied that separated women with unsolved bride price arrangements constitute a particular social group, pursuant to sections 5J(1)(a) ad 5L. The group is identifiable by a common characteristic, namely gender and marital status, customarily and legally understood, whereby the marriage contracts had been sealed by exchange of a combination of money and goods for female spouses. The characteristic common to all members of the group is not a shared fear of persecution. The Tribunal is satisfied that the possession of that characteristic distinguishes the group from society at large.
A well-founded fear within the meaning of s.5J
In this case, the applicant has credibly claimed that her ex-husband and other family members have subjected the applicant to the rankest varieties of physical, sexual and emotional abuse and she has credibly outlined that her own family have upheld the institution of bride price by not protecting the applicant by reporting the family and sexual violence to the authorities or to help the applicant with compensation to settle the bride price in her favour.
Notwithstanding that PNG law now criminalises domestic violence, the independent information points to a failure by the relevant authorities to enforce the law. In this regard, the Tribunal has considered the country information available providing general background support for the applicant's claim to fear violence at the hands of her husband’s family. Among this information is a comprehensive 2016 report prepared by Medecins Sans Frontières (MSF) which states, in part:
In Papua New Guinea, women and children endure shockingly high levels of family violence and sexual violence with rates of abuse estimated to be some of the highest in the world outside a conflict zone.
This is backed up by the experience of Médecins Sans Frontières/Doctors Without Borders (MSF), which has treated 27,993 survivors of family and sexual violence in the country since 2007.
In 2014 and 2015, some 3,056 people sought care for the first time in MSF-run family Support Centres in the capital, Port Moresby, and in Tari, in the Highlands region. Their accounts provide important insights into the patterns of intimate partner violence, family violence and sexual violence in these areas. Their experiences suggest that large numbers of people are suffering grave physical and psychological wounds in the very place they should feel the safest – within their homes and families.
The overwhelming majority – 94 percent – of these patients were female.
Most had been injured by their partners, family or community members, and in more than a quarter of all incidents involving intimate partners, the women had been threatened with death. Nearly all – 97 percent – of those patients had injuries that required treatment. Two in three had been attacked with weapons, including sticks, knives, machetes and blunt instruments.
Children are also exposed to serious violence from a very young age, MSF's data shows, most often at the hands of family members or others they know in their community. More than half of all MSF consultations for survivors of sexual violence were with children, around one in six of which were with children younger than five years. Children also made up one in three of all family violence consultations in Port Moresby, and one in eight in Tari.
Forty-nine percent of patients who sought care following sexual violence said the abuse – in most cases, rape – occurred at home. The younger the survivor, the more likely it was that they were abused at home. For most patients, the perpetrator of sexual violence was someone they knew. Again, the younger the child, the more likely this was, with a known perpetrator involved in the sexual violence against almost nine in ten children younger than five years.
Many of the patients who returned home after their consultation were in danger of experiencing further abuse. One in ten adult women reported that the latest incident of sexual violence was part of a repeated or ongoing pattern. For children, this risk was heightened, with almost two in five children experiencing repeated or ongoing sexual violence.[9]
[9] “Return to Abuser: Gaps and a failure to protect survivors of family and sexual violence in Papua New Guinea”, Medecins Sans Frontieres, March 2016.
Family and sexual violence are clearly widespread and destructive in Papua New Guinea. This makes it all the more vital that survivors have access to free, quality, confidential treatment, in addition to services beyond medical care to keep them safe. But, at present, this is too-often not the case. Patients face multiple obstacles for obtaining essential medical and psychological care, and they face severely limited options for accessing the legal, social and protection assistance they require. They are thus made 'double victims' – suffering first from brutal attacks, and then from failures in service provision and in the protection system.
Inadequate or inappropriate responses from the country's hybrid system of formal and traditional justice, and the dysfunction of the protection system, are putting survivors' lives and health at risk. Patients' experiences expose a culture of impunity, and a continuing reliance on traditional forms of justice to solve serious family and sexual violence cases. The widespread tradition of 'compensation', whereby either money or pigs are paid to victims' families for crimes committed, means that perpetrators often remain within their communities, exposing survivors to the threat of repeated violence.
In Papua New Guinea, traditional village courts sit within the formal system and are legally not authorised to determine criminal matters such as rape or murder, which should always be referred to the district or national courts. However, district courts are located only in provincial capitals, and with more than 80% of the population living in rural areas, a journey to the police or court can mean several days of travel.
The costs, insecurity and time associated with travel create disincentives to use the formal system for some, and render it impossible for others.
The police also face their own logistical and budgetary barriers to enforcing the law in remote areas – due to shortages of fuel or vehicles or reluctance to travel to areas with little government presence where police are not welcome.
However, survivors' stories reveal that these logistical barriers are merely one factor in the complex, interconnected reasons for the continuing under-reporting of violence against women and children and the strong reliance on the village court system, including for serious domestic and sexual crimes A lack of legislative protection and support, combined with a general lack of confidence in the police and formal justice system, also contribute to the under-reporting of family and sexual violence.
Survivors need dedicated spaces within police stations for trained officers to respond to family and sexual violence cases in an appropriate, sensitive and effective manner. However, while family and sexual violence Units were created for this purpose, some provinces still do not have any (14 provinces out of 22 have established Family and Sexual Violence Units) with a total of only 17 for the whole country.
In addition, Papua New Guinea's entire police force is understaffed. The UN recommends a ratio of 1 to 400 police officers to the population, but in PNG it is three times lower, at 1 to 1200. Furthermore, stories from survivors reveal that police officers outside the Family and Sexual Violence Units and Sexual Offences Squad remain under-trained or under-committed to deal appropriately with this type of violence.
Incidents of police misconduct also fuel distrust in the formal justice system, leading to continued disengagement from reporting and pursuing criminal proceedings. In the last three months of 2015 alone, 41 officers in the capital, Port Moresby, were suspended on misconduct charges, while more than 1,600 complaints of police abuse were reported over a seven year period.
Many survivors of family and sexual violence have told MSF staff that their dealings with police were met with apathy or dismissive attitudes, at best, and with corruption, aggression and even violent abuse, at worst.
It is telling that one in ten adult women – 10% (13/129) – who sought treatment in the Port Moresby centre following sexual violence in 2014 and the first six months of 2015 reported that the perpetrator was a member of the police or military.
Even when police do follow up a case and it makes it to court, the prosecution of perpetrators remains ad hoc, as shown by statistics from Lae, Morobe province, where the probability of a sexual violence case involving a female being successfully prosecuted was just 1 in 338, while one involving a child was 4 in 192
The barriers to seeking protection through the official legal system contribute to a continuing reliance on village court culture. Papua New Guinea's 'wantok system' promotes a communal culture with a strong preference for dealing with issues within the clan or community internally, rather than through government-enforced national laws. So, although domestic violence was classified as a criminal offence under the 2013 Family Protection Act, it continues to be viewed by many as a private matter to be handled within the family or by traditional community compensation mechanisms.
Village courts often rely on an approach that prioritizes continuing wantok group unity over survivors' needs. The widespread culture of 'compensation', whereby money is paid to victims' families for crimes committed, means that perpetrators of family and sexual violence often evade imprisonment and any official recognition of their violence as a criminal act.
Such rulings fail to protect the survivor, or others, from further violence and harm, as the perpetrator is free to return to the community where the victim lives. The compensation approach also reduces incentives to make complaints against perpetrators who come from the same family or clan as the victim – which is the reality for all survivors of intimate partner violence and almost half the survivors of sexual violence treated by MSF.
The United States State Department's current report on human rights practices in Papua New Guinea states, in part:
The law criminalizes intimate-partner violence, but it nonetheless persisted throughout the country and was generally committed with impunity.
Since most communities viewed intimate-partner violence as a private matter, few survivors reported the crime or pressed charges, and prosecutions were rare. The law also gives legislative backing for interim protection orders; allows neighbours, relatives, and children to report domestic violence; and gives police the power to remove perpetrators from their homes as a protective measure. Implementation of the law remained incomplete…
Traditional village familial networks, which sometimes served to violence, were weak and largely absent when youths moved from their villages to larger towns or the capital. According to Amnesty International, approximately two-thirds of women in the country were struck by their partners, with the number approaching 100 percent in parts of the Highlands. The NGO reported there were only three shelters for abused women in Port Moresby, all privately run, which were often at full capacity and had to refuse women interested in counseling and shelter. The situation was worse outside the capital, where small community organizations or individuals with little access to funds and counseling resources maintained the shelters.
Violence committed against women by other women frequently stemmed from domestic disputes. In areas where polygyny was customary, authorities charged an increasing number of women with murdering another of their husband's wives.
Independent observers indicated that approximately 90 per cent of women in prison were convicted for attacking or killing their husbands or another woman.
Other Harmful Traditional Practices: Customary bride price payments continued to increase. This contributed to the perception by many communities that husbands owned their wives and could treat them as chattel…
Although the law provides extensive rights for women dealing with family, marriage, and property disputes, gender discrimination existed at all levels. Women continued to face severe inequalities in all aspects of social, cultural, economic, and political life. Some women held senior positions in business, the professions, and the civil service, but traditional and deep-rooted discrimination against women persisted. Women, including in urban areas, were often considered second-class citizens.
Village courts tended to impose jail terms on women found guilty of adultery while penalizing men lightly or not at all. The law requires district courts to endorse orders for imprisonment before imposing sentences, and National Court justices frequently annulled such village court sentences. Polygyny and the custom in many tribal cultures of paying a “bride price” tended to reinforce a view of women as property. In addition to being purchased as brides, women sometimes were given as compensation to settle disputes between clans, although the courts have ruled that such settlements denied women their constitutional rights.[10]
[10] US Department of State “Papua New Guinea – Country Report on Human Rights Practices 2015”, 13 April 2016.

While there have been some recent measures to improve the responses of the police and the judicial system to these problems, effective state protection is largely absent. There is evidence of unwillingness on the part of the police, particularly in rural areas but also to some extent in Port Moresby and other major population centres, to regard domestic violence against women as a suitable matter for official action and a tendency to dismiss complaints or abet the offender. The judicial system, in particular at village level, has demonstrated a general inability or unwillingness to penalize the few offenders who are charged and brought before the courts.
At this point, the Tribunal would like to address two of the delegate’s findings. First the delegate noted that the violent offending had abated against the applicant by her ex-husband since 2008 and that she has not been harmed by her brother in law since 2010. She did not immediately leave the [Town 1] areas. However, the applicant has claimed to be harassed prior to her departure and provided some social media evidence of ongoing threats towards her from her ex-husband since her arrival in Australia. The Tribunal has provided her with the benefit of the doubt that these incidents are credible. The delegate also places some weight on the applicant’s children residing with the applicant’s mother in [Town 1] for a period as evidence of being supportive. Indeed, in the Tribunal’s own mind, it wondered how such a significant figure as her father was not able to extract his daughter from the toxic impact of bride price. In that regard, the Tribunal finds the applicant’s father and his leadership role in the Western Highlands would not to be typically seeking to reform bride price but to respectfully reinforce the general acceptance of such institution in that part of Papua New Guinea, given the volatile and violent nature of politics in that region. Therefore, providing material and other benefits to the sons of the applicant and denying or promoting protection for their applicant who was subject to an interconnecting tribal environment where honoring bride price was both expedient and cognitively dissonant.
In the eyes of the applicant’s non-state persecutors, the applicant is chattel because they have paid bride price and have not been compensated for it. Even though her spousal relationship for intents and purposes has ended, she is not divorced, and other men are not likely to partner with her because the bride price to which the applicant is subject is unresolved as it places themselves at risk. Furthermore, the applicant’s vulnerabilities as a single mother with few assets and income and an unsupportive family are exacerbated by the very low capacity of the authorities to protect such women from sexual predation and violence. This constitutes a discriminatory denial of state protection. In this regard, the Tribunal notes that the Special Rapporteur’s report indicates that it is a common experience that reports to the police are not taken seriously. The Special Rapporteur referred to numerous accounts of police officers ignoring complaints, dismissing women from police stations, encouraging women to drop orders, not enforcing interim protection orders or receiving bribes from perpetrators to ignore a case. The US Department of State has referred to widespread sexual violence committed by police officials and indicated that the unresponsiveness of those officials to complaints of sexual or domestic violence deterred reporting. Based on all the available evidence, the Tribunal accepts that there is a widespread and systemic failure to properly protect women and girls in PNG from violence, notwithstanding laws criminalising domestic violence and recent related matters.
The Tribunal is satisfied that there is a real chance that the applicant would be discriminatorily denied protection against harm for a Convention reason (as defined by s.5J). The leading case on this point is MIMA v Khawar (2002) 210 CLR 1. In that case, the High Court confirmed that the Convention test may be satisfied by the selective and discriminatory withholding of State protection for a Convention reason from serious harm that is not Convention related.
The Tribunal finds that the applicant, as a separated woman subjected to an unresolved bride price, would face a systemic and discriminatory failure by agents of the Royal Papua New Guinean Constabulary to properly enforce the law, if she returned to her home area of the Western Highlands Province. The Tribunal also accepts that the applicant’s previous experiences of violence and threats, both direct and indirectly at the hands of her husband and his family members lend probability to the likelihood of future risk of harm by the same family members. It accepts that she sends remittances to her children in her home country and only earns a low income while in Australia that she will have difficulties finding well-paid employment in Papua New Guinea. This indicates an incapacity to pay compensation for the bride price herself. Looking to the reasonably foreseeable future, it finds that there is a real chance that the applicant would be significantly physically ill-treated and/ significantly physically harassed by non-state actors and that she would be discriminatorily denied state protection against serious harm for reason of membership of the particular social group of “separated women subjected to unresolved bride price”.
It accepts that her membership of the relevant particular social group would constitute the essential and significant reason for the withholding of state protection in her home area of Western Highlands, as required by s.5J(4)(a). The Tribunal finds that this would be systematic and discriminatory because it is targeted at females who are the chattels of men and their families who have not been compensated for paying bride price, as required by s.5J(4)(c) and s.5J(2) of the Act.
In this regard, the applicant holds a well-founded fear of persecution for a ‘nexus’ reasons mentioned under s.5J(1)(a), if she returned to her home area.
Does the real chance of persecution relate to all areas of the applicant’s receiving country?
The Tribunal discussed with the applicant the possibility of relocation with her receiving country with the applicant. The applicant was adamant that that relocation to a larger town or city such as Lae, Rubal or Port Moresby would not reduce the chances or risk of sexual violence against her. The applicant argued that she will remain at a real chance of serious harm given she has no suitable male or family member to protect her from opportunistic sexual assaults (which she credibly claimed that she had been subjected to in the past) or from those from [Town 1] who consider the applicant to their chattel, should she discovered.
Whilst she had [siblings], all were married with families of their own, living in the Western Highlands. She also suggested that country information notes that it is difficult for a woman to relocate within Papua New Guinea as it was possible that her husband or members of his family could locate her wherever she was.
The available country information strongly indicates that throughout the applicant’s receiving country, Royal Papua New Guinea Constabulary is unsatisfactorily trained, staffed and funded to address the endemic problems of sexual assault and violence towards women in larger cities as well as remote areas. This is despite recent but inadequate efforts to better target such violence thought specialised sexual offences units within the constabulary.
Other state funded services are hazardously insufficient and oversubscribed to provide the ancillary legal and logistic services the number of women in need of protection. The Tribunal notes the following about services to protect women from domestic violence and sexual assault in the country information collated by COISS in the Common Claims: Papua New Guinea document (effective from 3 June 2020):
There are limited prospects for female victims of family violence to relocate to other areas of Papua New Guinea, including Port Moresby. Safe houses and shelters for women experiencing family violence are extremely limited, are often at capacity, and offer only short-term placements.[11] For example, there are five shelters for abused women in Port Moresby, run by faith organisations, which often are at capacity[12], including the best shelter of this kind in PNG.[13] There is also a severe lack of other services for women including access to qualified counsellors, case management, financial support, or legal aid.[14] Relocation to larger cities and towns may also exacerbate a women’s vulnerability to violence. Traditional village familial networks (wantoks), which sometimes serve to mitigate violence, are weak and largely absent when locals relocate from villages to larger towns or Port Moresby.[15] Women who internally relocate to escape violence are likely to lose all of their possessions, including titles to land.[16] Social, cultural, political and economic discrimination against women is evident throughout PNG; even women in urban areas are considered to be second-class citizens.[17]
[11] ‘Country Report on Human Rights Practices 2016 - Papua New Guinea’, US Department of State, 3 March 2017, p.15, OGD95BE926861; ‘DFAT Country Information Report Papua New Guinea’, Department of Foreign Affairs and Trade, 10 February 2017, p.17, CISEDB50AD227; ‘Return to abuser: Gaps in servicers and a failure to protect survivors of family and sexual violence in Papua New Guinea’, Médecins Sans Frontières (MSF), March 2016, p.8, CIS38A8012323; ‘Amnesty International Report 2016-2017’, Amnesty International, 23 February 2017, p.291, NG2A465F54; ‘Women seek islands of refuge in Papua New Guinea's sea of violence’, Davidson, H, The Guardian, 1 March 2016, CX6A26A6E1720; ‘Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo. Addendum. Mission to Papua New Guinea’, Manjoo R, United Nations General Assembly. Human Rights Council, 18 March 2013, pp.17-18 paragraph 76, on Refworld website, CIS26802
[12] ‘Country Reports on Human Rights Practices for 2019 - Papua New Guinea’, United States Department of State Bureau of Democracy, Human Rights and Labor, 11 March 2020, p.16 section 6, 20200312110546; ‘Country Reports on Human Rights Practices for 2018 - Papua New Guinea’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, p.17, section 6, 20190314114643; ‘Country Reports on Human Rights Practices 2017. Papua New Guinea’, US Department of State, 20 April 2018, p.18 section 6, OGD95BE927331
[13] ‘Sanctuary in a land where women are not safe’, Chatham House - The World Today, 01 April 2016, CIS38A80123138
[14] ‘World Report 2018’, Human Rights Watch, 18 January 2018, pp.417 & 420, NGED867A63
[15] ‘Country Report on Human Rights Practices 2016 - Papua New Guinea’, US Department of State, 3 March 2017, p.16, OGD95BE926861; ‘The country where rapists are proud and happy to pose for photos’, News.com.au, 1 June 2015, CXBD6A0DE7393
[16] ‘DFAT Country Information Report Papua New Guinea’, Department of Foreign Affairs and Trade, 10 February 2017, p.26, CISEDB50AD227
[17] ‘Country Report on Human Rights Practices 2016 - Papua New Guinea’, US Department of State, 3 March 2017, p.17, OGD95BE926861
In cumulatively considering the applicant’s circumstances and the country information about sexual violence towards women in general, the Tribunal accepts the applicant has well-founded fear of persecution due to the ineffective protection measures available to her throughout Papua New Guinea, as required by s.5J(2) and because the applicant has a real and appreciable chance, and not a remote or far-fetched one, of persecution for a reason mentioned under s.5J(1)(a) that relates to all areas of the applicant’s receiving country, namely Papua New Guinea, pursuant to s.5J(1)(c).
Accordingly, the Tribunal finds that she has a well-founded fear of persecution for reason of her being a member of a particular social group of separated Papua New Guinean women subjected to unresolved bride price as she satisfies s.5J(1)(a), (b) and (c), throughout all areas of her receiving country.
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for reason of her being a member of a particular social group of separated Papua New Guinean women. Her fear of persecution is well-founded as required by s.5J of the Act and therefore she is a refugee within the meaning of s.5H(1) and s.36(2)(a).
As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Brendan Darcy
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.
…

[2021] AATA 1041

22 March 2021

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