1715978 (Refugee)

1715978 (Refugee) [2021] AATA 3504 (28 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715978
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Tamara Hamilton-Noy
DATE:28 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 28 July 2021 at 10:27am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – women in Papua New Guinea – attempted sexual assaults – family members of Papua New Guinea Defence Force soldiers – Autonomous Region of Bougainville – pro-independence movement – fear of the Bougainville Revolution Army (BRA) – effective state protection – culture of tribal violence and payback – repeated returns to Papua New Guinea – significant delay in seeking protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 July 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The primary review applicant [Ms A] (the applicant) arrived in Australia on a student visa [in] June 2013.
The second named applicant [Mr B] (the applicant husband) and the sixth named applicant, the child [Child C] (the applicant daughter) arrived in Australia [in] August 2013 and departed Australia [in] September 2013.
The applicant departed Australia [in] November 2013 and returned to Australia [later in] November 2013. She departed Australia again [in] December 2013 and returned to Australia [in] January 2014. She departed Australia [in] July 2014 and returned to Australia [later in] July 2014.
The third named applicant, the child [Child D] (the third named applicant) arrived in Australia [in] August 2014.
The fourth named applicant, the child [Child E] (the fourth named applicant) arrived in Australia [in] November 2014.
The applicant departed Australia [in] December 2014 and returned to Australia [in] January 2015. She departed Australia [in] January 2015 and returned to Australia [in] January 2015.
[In] February 2015, the applicant husband, the fifth named applicant, the child [Child F] (the fifth named applicant) and the sixth named applicant arrived in Australia.
[Later in] February 2015 the applicant husband departed Australia and returned to Australia [in] September 2015. The applicant husband again departed Australia [in] October 2015 and returned to Australia [later in] October 2015.
The applicant departed Australia [in] November 2015 and returned to Australia [in] January 2016.
The applicants applied for protection on 8 February 2016.[1]
CLAIMS AND EVIDENCE
[1] Movement details taken from Department decision, a copy of which was provided by the applicants to the Tribunal.
Evidence before the Department
In a statutory declaration dated 2 February 2016, attached to her protection application, the applicant stated that she is from the Autonomous Region of Bougainville, Papua New Guinea. She is applying for protection because she fears the family will be harmed with the pro-independence movement taking place there. In Port Moresby, she stated, the family were subject to racism, discrimination, verbal and physical attacks, because police in Papua New Guinea have been killed and due to the family’s darker skin colour than the brown-skinned people of mainland Papua New Guinea. The applicant stated the authorities are corrupt, underfunded, and known as agents of brutality, and are unable to protect them. She indicated her father was a soldier who worked for the Papua New Guinea Defence Force, who died in 2016 from injuries sustained from the Bougainville Revolution Army (BRA) during the crisis from 1989 to 1997. The BRA suspected he was an informant and beat him badly, which paralysed him until his death. She declared her mother and [number of] siblings continue to reside in Bougainville as they cannot afford to leave.
The applicant stated that she was scared that she and her daughter will be raped and killed by police and defence forces if the crisis re-starts, with tensions high in the lead up to the referendum. She fears the BRA will violently and forcibly recruit her [number of] teenage sons and her husband, particularly as her father was seen as a traitor for his association with the Papua New Guinea Defence Force. The applicant stated that she and her family experienced harm from the BRA, having been subjected to verbal abuse and beatings in [Town 1] during the crisis from 1989 to 1997. She stated that relocation was not possible as life on the mainland is a constant struggle for the family’s safety and they are discriminated against in employment.
In support of her application, the applicant provided a letter from [Ms G], undated; a letter from [Mr H], undated; identification documents for all applicants; [University 1] student card for the applicant; and a PNG national police clearance (employment) in relation to the applicant, dated [in] December 2015, revealing ‘nothing to the detriment of the person named’, and a national criminal history check, dated [in] April 2015, in relation to the applicant, showing no disclosable outcomes, were also provided.
The applicant was interviewed by a delegate of the Department on 30 November 2016. The Tribunal has access to a copy of the interview recording and parts of it are referred to below where relevant.
On 10 July 2017, a delegate of the Department found the applicants are not persons to whom Australia owes Protection obligations. The delegate accepted the applicant feared harm for reasons of her race, membership of a particular social group ‘females in Papua New Guinea’, and her imputed political opinion but, with reference to country information on the situation in Bougainville, found the applicant would not face a real chance of persecution for any of these reasons. In relation to the claimed ground of political opinion, the delegate found the security situation in the area was relatively calm, that the applicant’s mother and siblings lived in the area without hindrance, and no evidence the applicant’s father’s profile would be a reason for persecution. In regards to females in Papua New Guinea, the delegate noted the applicant did not claim to fear harm due to family violence, which is extensive across Papua New Guinea, and found that her husband and four sons could offer ‘effective male protection’ to the applicant and her daughter. Regarding the applicant’s race, the delegate did not accept that abusive language or harassment that the applicant may face on the mainland would amount to persecution. Accordingly, the delegate found the applicant was not a refugee, on the basis that they were not satisfied the applicant would face serious harm. The delegate was also not satisfied the applicant is owed complementary protection.
Evidence before the Tribunal
On 4 March 2021 the Tribunal wrote to the applicant, advising that it had considered all of the information before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing at the Tribunal’s Melbourne Registry on 7 April 2021.
On 31 March 2021, the applicant’s representative provided to the Tribunal legal submissions; a statutory declaration of the applicant unsigned and undated; and documents in relation to the applicant’s father, [Mr I], his participation in the Papua New Guinea Defence Force and related compensation claims.
On 1 April 2021, the Tribunal wrote to the applicant to advise that the hearing scheduled for 7 April 2021 would be postponed, in order for the Tribunal to address pre-hearing matters. On the same date, the Tribunal wrote to the applicant under s.424A, inviting her to comment on certain information before the Tribunal that had been provided to the Department and was subject to a s.438 certificate. The applicant responded to the Tribunal’s correspondence on 21 April 2021, relevant parts of which are discussed further below. In addition to legal submissions provided by the representative, the applicant provided two statutory declarations, an email from the applicant to her representative dated 13 March 2019, death certificates for the applicant’s father [Mr I] (dated [in] January 2016) and applicant’s younger brother [Brother J] (dated [in] November 2018), a certificate of peace appreciation for [Mr I] undated, evidence of the applicant husband’s gunshot wound, photographs of the applicant’s homes and properties burnt and destroyed, and a discussion of country information in relation to the submissions.
On 22 April 2021, the Tribunal invited the applicant to a rescheduled hearing to be held on 14 May 2021. On 22 April 2021 the applicant’s representative requested a postponement of the hearing due to the representative’s unavailability. On 22 April 2021 this request was granted. The applicant was invited to a rescheduled hearing on 24 May 2021.
The Tribunal hearing was held on 24 May 2021. The applicant, applicant husband and their representative attended the hearing, which was held in-person at the Tribunal’s Melbourne Registry. No interpreter was requested for the hearing. The Tribunal was satisfied that both the applicant and applicant husband were able to give evidence and present arguments to the Tribunal throughout the hearing.
Following the hearing, on 4 June 2021, the applicant’s representative provided written submissions to the Tribunal, relevant parts of which are set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
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.
Assessment, reasons and findings
Country of nationality
The applicants all travelled to Australia on Papua New Guinean passports and have at all times maintained they are citizens of Papua New Guinea. The Tribunal accepts the applicants are citizens of Papua New Guinea and has assessed their claims against Papua New Guinea as their country of nationality.
The applicants’ backgrounds
The Tribunal accepts the evidence given by the applicant at hearing that she was born in Bougainville and moved to Port Moresby in her late teens due to the ongoing unrest in Bougainville. The Tribunal accepts that the applicant has [number of] children, [number] of whom are with her in Australia, and that her eldest son remains living in Port Moresby due to difficulties obtaining a visa to travel to Australia.
The Tribunal also accepts the evidence given by the applicant husband at hearing that he was born in Bougainville and moved to Port Moresby after the unrest in Bougainville. The Tribunal accepts that the applicant husband met the applicant in Port Moresby. The Tribunal accepts that the applicant husband worked in [specified industry] after finishing high school and undertaking a college degree in Port Moresby and that he initially remained in Port Moresby when the applicant travelled to Australia to stay with their children and to try and assist their oldest son to obtain a visa to Australia. The Tribunal accepts the evidence of the applicant husband that his family owns customary land in Bougainville, which is recognised as being owned by his clan, and that the family owns a house in Port Moresby.
During the hearing the Tribunal raised concerns it had with the applicant about her claims. One of these concerns was the applicant’s repeated returns to Papua New Guinea since first arriving in Australia. The applicant’s evidence was that she returned to Papua New Guinea in November 2013 to see her daughter, who had been a baby when she left for Australia. She gave evidence that the [scholarship] she had received required her to return each six months and that, on each occasion, she had limited her movements and stayed at home. A grant notice for the applicant’s student visa confirms that she was granted an [sponsored sector] subclass 576 visa. While the Tribunal had no direct evidence before it of the associated requirements attached to [the specified] scholarship, the Tribunal found the applicant to give her evidence about her departures from Australia in a spontaneous and plausible manner and accepted her stated reasons for leaving Australia between 2013 and 2016. The Tribunal is also prepared to accept that the significant delay between the applicant first arriving in Australia and claiming protection occurred within the context of the applicant having a valid visa to reside in Australia and pursuing studies in Australia as a result of holding a student visa. The Tribunal is prepared to accept that the applicant husband’s returns to Papua New Guinea occurred to check on the children that remained living there, and finds that he did not experience harm during his returns to Papua New Guinea.
The applicant’s initial claims related, in part, to her father’s role with the Papua New Guinea Defence Force. The applicant gave evidence to the Tribunal that her father was with the army in Papua New Guinea, then spent years in Australia and returned to Papua New Guinea with the Papua New Guinea Defence Force. The applicant described her father’s role as trying to get people out of the jungle and into government-controlled areas and to flush out rebels to bring normalcy back to Bougainville, a role which was seen by the rebels as a traitor. The applicant claimed that her father was based in Australia for some seven years and that he died in 2016 from injuries sustained in an attack by the BRA. The applicant claimed that the payback system is ingrained in Papua New Guinean culture and that she feared harm as a result of her father’s role. The applicant advanced these claims at both the Department interview and in her oral evidence at the Tribunal hearing and the Tribunal finds that her claims in respect of her father’s role have been consistent as to their details. The applicant provided to the Tribunal documents relating to her father, including media articles, a death certificate and documents relating to a compensation claim taken out by her father in 2006.
The Tribunal is mindful that the applicant’s claims should be given the benefit of the doubt in the absence of good reasons to find otherwise. The Tribunal finds that the applicant has been consistent and plausible regarding her father’s role with the Papua New Guinea Defence Force, the reasons for his death and her consequent concerns about her own safety as a result of her father’s role. The Tribunal is prepared to accept that the applicant’s father had a role with the Papua New Guinea Defence Force, that he was stationed in Australia for a period of time as part of his role and that he died of injuries inflicted as a result of his role with the Defence Force.
The applicant gave credible evidence during the hearing about returning to Papua New Guinea when her father passed away, having returned to Bougainville to evacuate her father’s body to Port Moresby and being attacked while in a car in Bougainville. On the basis of the applicant’s overall credibility and the details outlined at the hearing about this attack, the Tribunal is prepared to accept that the applicant was attacked when she returned to Bougainville after her father passed away and that the attack was because of her father’s former role with the Papua New Guinea Defence Force.
The applicant gave what the Tribunal considered to be credible evidence about attempted sexual assaults she had experienced in both Bougainville and Port Moresby. The applicant husband also gave evidence about his observation of an attempted sexual assault against the applicant while they were living in Papua New Guinea. The Tribunal found these claims by the applicant to be both credible and consistent with country information about the prevalence of violence against women across Papua New Guinea. The Tribunal is prepared to accept that the applicant experienced attempted sexual assaults in both Bougainville and Port Moresby and that the perpetrators of the attempted sexual assaults were people not known to the applicant.
Both the applicant and applicant husband gave evidence to the Tribunal at hearing that their son had been abducted for a two-week period in 2017 by a group related to the BRA. In a statutory declaration provided to the Tribunal, the applicant submitted that [Child K] had been taken by rebels wanting him to join them and be part of their movement, that this had happened in Bougainville and that his uncle had found him and negotiated for him to be released, following which he was moved to Port Moresby. The applicant husband was asked about the incident during the hearing and the Tribunal had some difficulty accepting aspects of his evidence, in which he stated he had not sought details of his son’s abduction or the circumstances in which he was released. The applicant and applicant husband also gave evidence to the Tribunal that the applicant’s cousin had been killed in 2018 by being stabbed with [an implement] in Port Moresby and that their perception is that these events were due to ongoing unrest in Bougainville. Given the overall general credibility of the applicant and applicant husband at hearing, and given that country information supports the high crime rates across Papua New Guinea and the system of payback that operates over long periods across the country, the Tribunal is prepared to accept these events as true.

The Tribunal accepts that the third named, fourth named and fifth named applicants were all born in Papua New Guinea and came to Australia on student visas. The Tribunal accepts that the applicant daughter was born in Papua New Guinea and first arrived in Australia on a visitor visa with the applicant father.
s.438 certificate
The Tribunal had before it certified information under s.438. A copy of the s.438 certificate was sent to the applicant prior to the hearing and the applicant was invited to comment on the validity of the certificate. The applicant’s representative responded with written submissions, stating that the certificate is not valid on the basis that information received from a third party is not sufficient to attract public interest immunity; information relating to whether the applicant meets the refugee criterion is not sufficient to attract public interest immunity; and the assertion that the applicant does not qualify for protection is broad and unspecific.
The Tribunal was of the view that the certificate was valid and put a summary of the certified information to the applicant under s.424A and gave the applicant time to respond in writing to the information. The certified information related to submissions that peace had been obtained in Bougainville since the 1990s and the applicant was therefore not at risk, and broad allegations about the financial position of the applicants, their running of a business and land holdings, and business conducted by the applicant husband between Australia and Papua New Guinea.
The response provided by the applicants included a further statutory declaration by the applicant addressing the allegations and a copy of an email the applicant had sent to her representative in 2019 which set out her concerns about difficulties she was experiencing with members of the Papua New Guinea community who were resident in Australia at the time.
Given the broad and unsubstantiated nature of the allegations, and having regard to the response provided by the applicants to the s.424A information, the Tribunal considered that the certified information did not provide any compelling or relevant information for the purposes of assessing any protection obligations owed to the applicants. The Tribunal in consequence places no weight on the certified information in making a decision in this matter.
Country information
The most recent DFAT report for Papua New Guinea notes that since independence in 1975, the country has faced considerable economic, security and political challenges. The country has experienced growing levels of crime, corruption and political instability. Forty years on from independence, many Papua New Guinean citizens experience very limited access to government services.[2] In February 2018, the UN High Commissioner for Human Rights noted that much of Papua New Guinea’s population lives in ‘abject poverty, with acute malnutrition rates in some areas comparable to Yemen and minimal access to quality healthcare and education’.[3]
[2] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 2.2 – 2.3.
[3] United Nations Human Rights, Office of the High Commissioner, ‘UN human rights chief urges Papua New Guinea to combat corruption and strengthen rule of law’, 9 February 2018 at
Papua New Guinea’s most recent census in 2011 recorded a population of 7.25 million. It has a heavily ruralised population, with only 15 per cent of the population living in urban areas. Its largest city, and capital, Port Moresby has an estimated population of 345,000. The indigenous population of Papua New Guinea is one of the most heterogenous in the world and it is home to hundreds of ethnic, communal, tribal or clan (‘wantok’) groups.[4] Wantokism is the system of social kinship, welfare and mutual obligation derived from Papua New Guinea’s tribal-based society and affects most aspects of life, including in business and government, and in a contemporary setting extends to relationships between school classmates and work colleagues. People who gain any position of power or responsibility are expected to look after their wantoks. At its best, wantokism operates as a social supporting mechanism to ensure that members of the tribe who are less able to look after themselves are supported. Wantokism also, though, leads to practices such as money being siphoned from businesses, public money being misappropriated, state officials pressured and officials reluctant to uphold rights of individuals outside of their wantok group.[5]
[4] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 2.5 – 2.6.
[5] DFAT Country Information Report Papua New Guinea, 10 February 2017, at p3.
Bougainville is located 1,000 kilometres east of the mainland and is comprised of two large islands, Bougainville and Buka and many smaller islands. It has a population of 200,000 and is culturally and linguistically diverse, with pre-colonial land-holding clan structures continuing to be the main social unit. It was administered by Australia to 1975 and attempted to secede from Papua New Guinea days before Papua New Guinea’s independence. Constitutional changes guaranteed autonomy for Bougainville, although its state structure is described as weak at all levels, consistent with that seen across Papua New Guinea more widely.[6]
[6] Cultural Survival Quarterly Magazine, ‘Bougainville: Beyond Survival’, Anthony J Regan, September 2002 at
Disputes over disbursements of profits from a major copper mine in Bougainville descended into a violent conflict between the Papua New Guinea Defence Force and secessionist guerrillas between 1988 and 1997.[7] The conflict led to the death of 20,000 people, or 10% of Bougainville’s population.[8] The Autonomous Region of Bougainville was established following the signing of a peace agreement in August 2001, which ended a ten year civil conflict between the Papua New Guinea government and pro-independence separatists.[9] In November 2019, a referendum was held in Bougainville with over 98% of voters voting for independence; while non-binding, the outcome is reported to be likely to put pressure on Papua New Guinea to grant independence to Bougainville.[10]
[7] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 2.2.
[8] SBS News, ‘Bougainville’s gold mine sparked a war that killed 20,000 – now it could be reopened’, 22 November 2019 at
[9] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 2.28.
[10] BBC News, ‘Bougainville referendum: PNG votes overwhelmingly for independence’, 11 December 2019 at
The overall crime rate in Papua New Guinea is described as extremely high and as characterised by high levels of violence with crimes occurring randomly. Crime is particularly high in Port Moresby and other major cities and the settlement areas of towns and cities are particularly dangerous. Machetes and firearms are often used in assaults and thefts and car-jackings, armed robberies, assaults, sexual assaults and stoning of vehicles are common. The types of crimes experienced in Papua New Guinea vary significantly by region and gender, and gender-based violence and crimes against children occur regularly. Total crime victimisation for women and children is likely to be heavily under-reported.[11]
[11] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.35.
The Constitution provides for equal participation by women, there is an Office for the Development of Women, a National Council of Women Act (2010) and several civil society organisations dedicated to improving the situation for women in Papua New Guinea. However, despite such efforts, gender discrimination exists at all levels in Papua New Guinea and cultural barriers continue to place significant limits on the extent of female participation. Papua New Guinea ranked 158 out of 188 in the UNDP’s Gender Inequality Index.[12] Women’s participation in the workforce is limited by 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 on women’s education include underage marriage, unwanted pregnancies and lack of financial support.[13]
[12] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 3.32 – 3.33.
[13] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 3.38.
Levels of violence against women are described as extremely high across Papua New Guinea, with family violence endemic. Precise figures relating to family violence are unknown given the unreliability of statistics and social stigma about reporting. Reports by Human Rights Watch in 2013 and 2015 and a report by Medecins Sans Frontieres in 2016 outlined the high prevalence of family violence and the lack of protection mechanisms for victims of violence. In particular, the 2015 Human Rights Watch report noted that police and prosecutors rarely pursued criminal charges against perpetrators, even for the most serious cases. Police demanded money from victims of ignored them, there were court delays in seeking protection orders and, even after becoming involved, policy typically mandated mediation and reconciliation. Human Rights Watch also noted the lack of services for people requiring assistance, with a lack of safe houses, inadequate number of counsellors and no financial support.[14] In addition, there are reports that police commit sexual violence against victims, including against women in detention.[15]
[14] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 3.34 – 3.36.
[15] US Department of State, 2020 Country Report on Human Rights Practices: Papua New Guinea, 30 March 2021 at
The US Department of State reports that most informed observers believe that a substantial majority of women experienced rape or sexual assault during their lives. Amnesty International reports that approximately two-thirds of women have been beaten by their partners. Due to stigma, fear of retribution and limited trust in authorities, though, most women did not report rape or domestic violence.[16]
[16] US Department of State, 2020 Country Report on Human Rights Practices: Papua New Guinea, 30 March 2021 at
The Family Protection Act (2013) makes family violence a crime punishable by a fine and imprisonment of up to two years, in addition to establishing family and sexual violence units in police stations and family support centres in hospitals. Family support centres are reported to be under-resourced and only able to operate in limited hours.[17] The law criminalises rape, including intimate partner violence, and domestic violence. However, authorities prosecute few rapists and the legal system allows village chiefs to negotiate the payment of compensation to victims in lieu of trials for rapists and anecdotal evidence suggests that victims and their families pursue tribal remedies in preference to official procedures. Sexual harassment is not illegal and is described as widespread and severe, with women frequently experiencing harassment in public locations and in the workplace.[18]
[17] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 3.37.
[18] US Department of State, 2020 Country Report on Human Rights Practices: Papua New Guinea, 30 March 2021 at
DFAT assesses that women across Papua New Guinea have a high risk of societal discrimination due to longstanding 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 Papua New Guinea due to deeply held cultural traditions and institutional restrictions and that women in Papua New Guinea face a high risk of gender-based violence, regardless of their social status. Women in 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.[19]
[19] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 3.39.
In addition to a high overall crime rate, tensions between and within Papua New Guinea’s hundreds of different groups occurs frequently across Papua New Guinea and is triggered for a range of reasons, including land and territory-related issues, accusations of sorcery and witchcraft and inequality, which has led to outbreaks of fighting, rioting, looting, destruction of property, disruption of services, death and serious injury. Tribal violence is particularly prevalent in the Highlands regions, and conflicts between groups are complicated by grievances over access to royalties, benefits and compensation associated with resource extraction projects, including in mining, gas and logging. DFAT is aware of cases in recent years where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby. Violence has increased between tribes as a result of greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs.[20]
[20] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 2.36 – 2.38.
The Royal Papua New Guinea Constabulary (RPNGC) is responsible for internal security across all regions, although the Autonomous Region of Bougainville maintains its own police force which has authority to enforce local law while the RPNGC has authority to ensure national law is enforced. The RPNGC is perceived very poorly within the community. In particular, women surveyed reported disrespect, lack of action on complaints and sexual aggression and violence, including rape by police and exchange of favours for better treatment. Resource constraints limit the effectiveness of the RPNGC and police presence is negligible in some remote areas of Papua New Guinea. International bodies have identified abuses of power and the use of violence by police, including high profile incidents of police brutality in January 2015 in which a woman was shot and killed and a police officer subsequently charged over her murder, and January 2017 when two villagers were killed by officers in the outskirts of Port Moresby.[21] During 2020, the RPNGC were reported to engage in torture, cruel, inhuman or degrading treatment and punishment, a failure to investigate violence against women, arbitrary and unlawful killings, beating and abusing civilians, beating and taking money away from women, excessive force used against people in custody, arbitrary detention without evidence, harm to family members of alleged offenders, and sexual violence including against women in detention.[22]
[21] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 5.4 – 5.8.
[22] US Department of State, 2020 Country Reports on Human Rights Practices: Papua New Guinea, 30 March 2021 at
The legal system is based on English common law and the Constitution provides for the presumption of innocence and due process. The US State Department in 2015 found that the government generally respected the independence of the judiciary, though a shortage of judges created delays in both trial process and in decisions being issued. Access to a lawyer is a reported concern, with a limited number of lawyers practicing and many people unable to afford their fees.[23]
Refugee criterion
[23] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 5.12, 5.16 – 5.17.
The Tribunal accepts the applicant’s evidence that she moved from Bougainville to Port Moresby during the civil unrest, that she and her family own a house in Port Moresby and that her eldest son continues to reside in Port Moresby. The Tribunal finds that, if she returns to Papua New Guinea now or in the reasonably foreseeable future, the applicant would return to reside in Port Moresby.
The applicant has consistently raised concerns about the safety of herself and her daughter in Papua New Guinea, due to the level of violence against women. The Department has accepted that women in Papua New Guinea are subject to high levels of violence, but found that the applicant did not claim to fear family violence and was satisfied that the applicant’s husband and sons could offer effective male protection to her and the applicant daughter and that she would not face a real chance of persecution as a female in Papua New Guinea because of this.
The concerns raised by the applicant at hearing, and by the applicant husband on behalf of the applicant at hearing, were consistent with country information about the situation for women in Papua New Guinea. This information, set out above, indicates that violence against women is widespread and common across Papua New Guinea, that the majority of women in the country face violence in their lifetimes, and that the range of violence faced by women includes physical and sexual assault, and sexual harassment in public places and at work. Papua New Guinea is described as one of the most dangerous places in the world to be female.
The Tribunal accepts that the applicant experienced attempted sexual assaults in Papua New Guinea, in both Bougainville and in Port Moresby. The Tribunal is satisfied that, if she returns to Papua New Guinea now or in the reasonably foreseeable future, the applicant faces a risk of further physical and sexual violence, and harassment when out in public, from male members of the public. The Tribunal finds that the harm feared by the applicant amounts to serious harm, having regard to the instances of serious harm set out in s.5J(5). Given the range of harm feared by the applicant and the prevalence of violence against women in Papua New Guinea, the Tribunal finds that the harm feared amounts to systematic and discriminatory conduct, and that the chance is not remote or insubstantial that the applicant will experience the harm feared.
In addition, the Tribunal accepts that the applicant fears harm because her father previously held a role with the Papua New Guinea Defence Force. Amnesty International has reported on widespread payback or revenge killings where security forces were involved in killing a Bougainvillean from the same family or clan as those believed to have been responsible for the killing of members of the security forces. The report notes that many members of the Papua New Guinea Defence Force had lost clansmen, family or friends at the hands of the BRA and who themselves had sought revenge for the killings.[24] The Tribunal accepts that the ongoing conflict in Bougainville is occurring within a wider context of a cultural tradition of payback, acts of retaliation where one group has been harmed by another and payback occurs outside of more formal court processes.[25] Once hostilities begin, payback is reported to keep conflict alive for decades.[26] It is also occurring within more widespread tribal violence between and within Papua New Guinea’s hundreds of different groups that is reported to occur frequently across Papua New Guinea and to be triggered for a variety of reasons, leading to outbreaks of fighting, rioting, looting, destruction of property, disruption of normal services, death and serious injury.
[24] Amnesty International, ‘Bougainville: The forgotten human rights tragedy’ 1 February 1997, 12, at
[25] DFAT Country Information Report Papua New Guinea, 10 February 2017, p3.
[26] Reliefweb, ‘Papua New Guinea: Tackling clan conflict’, 7 January 2011 at

The Tribunal has accepted that the applicant’s father held a role with the Papua New Guinea Defence Force and has accepted that she and family members were targeted in Bougainville when she returned after her father’s death. While the incident outlined by the applicant occurred some five years ago, country information indicates that grudges and acts of retaliation can occur over decades. The Tribunal finds that the chance is more than remote that the applicant would face further acts of significant physical harassment if she were to return to Bougainville now or in the reasonably foreseeable future. Given the number of Bougainvilleans who moved to Port Moresby during the conflict, the Tribunal also considers that the chance is more than remote that the applicant may face further acts of significant physical harassment in Port Moresby due to her father’s previous role with the Papua New Guinea Defence Force.
The Tribunal finds that women in Papua New Guinea are a particular social group, as the characteristic is shared by each member of the group, and the characteristic is innate or immutable, distinguishes the group from society and is not a shared fear of persecution. The Tribunal finds that family members of Papua New Guinea Defence Force soldiers is also a particular social group that distinguishes the group from society and is a characteristic shared by each member of the group and is not a shared fear of persecution.
The Tribunal finds that the harm feared by the applicant, if she returns to Papua New Guinea now or in the reasonably foreseeable future, is for the combined reasons of her membership of the particular social groups of women in Papua New Guinea and family members of Papua New Guinea Defence Force soldiers. The Tribunal finds that the harm feared by the applicant is serious harm within the meaning of s.5J(5) and that the harm feared involves systematic and discriminatory conduct. The Tribunal is satisfied that the essential and significant reasons for the harm feared is the applicant’s membership of the particular social groups of women in Papua New Guinea and family members of Papua New Guinea Defence Force soldiers. Having regard to the past experiences of the applicant in Papua New Guinea and the current situation in Papua New Guinea, the Tribunal is satisfied that there is a real chance the applicant faces further harm if she returns to Papua New Guinea now or in the reasonably foreseeable future.
Given the high overall crime rate across Papua New Guinea, the levels of violence against women across Papua New Guinea and the culture of tribal violence and payback, and the role of police in physical and sexual assaults towards civilians, the Tribunal finds that the state is unable or unwilling to offer protection to the applicant from the harm feared and that there is not a reasonably effective police force operating in Papua New Guinea at present. The Tribunal finds that effective protection measures are not available to the applicant from the harm feared. The Tribunal finds that the real chance of serious harm exists across all areas of Papua New Guinea. The Tribunal is satisfied that the applicant is owed protection under s.36(2)(a) for the reasons set out above.
The Tribunal is satisfied that the applicant daughter would also return to live in Port Moresby if she is required to return to Papua New Guinea now or in the reasonably foreseeable future. For the same reasons as those set out above in relation to the applicant, and noting that the country information indicates that gender based violence against children occurs regularly, the Tribunal is satisfied that the applicant daughter fears serious harm if she returns to Papua New Guinea because of her membership of the particular social group of females in Papua New Guinea, that there is a real chance the applicant daughter would face the harm feared and that the harm feared by the applicant daughter is systematic and discriminatory conduct. Also for the reasons set out above, the Tribunal finds that the state is unable or unwilling to offer protection to the applicant daughter from the harm feared. The Tribunal is satisfied that the harm feared by the applicant daughter exists across all areas of Papua New Guinea, that she is unable to access effective protection from the harm feared and that she is also owed protection under s.36(2)(a).
As to the applicant husband and third, fourth and fifth named applicants, the Tribunal accepts that they would also return to reside in Port Moresby, where they own a house and where the applicant’s eldest son continues to reside. The applicant submits that all family members are at risk of harm due to the payback system that operates across Papua New Guinea. Country information indicates that there are complex reasons for acts of retaliation against individuals in Papua New Guinea and that these reasons persist for prolonged periods of time. Country information also indicates that acts of retaliation can occur outside the immediate area in which the conflict originally arose, for example, after an individual has moved from their original area to Port Moresby. The targeting of the applicant’s father and of the applicant when she returned to Bougainville after her father’s death both occurred a number of years after her father ceased working with the Papua New Guinea Defence Force. Further, the applicant’s evidence that her son and cousin were also targeted because of her father’s role with the Papua New Guinea Defence Force suggests that acts of retaliation may not be confined to the applicant herself but may extend to wider family. For this reason, the Tribunal is prepared to accept that the chance is more than remote that the family unit as a whole faces harm in Papua New Guinea because of the applicant’s father’s former role with the Papua New Guinea Defence Force, that the harm feared includes threats to their life, harassment and physical harm, and that the harm feared amounts to serious harm within the meaning of s.5J(5). Given the prolonged nature of payback in Papua New Guinea and the range of harm feared, the Tribunal is satisfied that the harm is systematic and discriminatory.
The Tribunal is prepared to accept that, while there is generalised violence across Papua New Guinea, the specific harms feared by the family unit are for reasons of the applicant’s father’s former role with the Papua New Guinea Defence Force. The Tribunal accepts that family members of the Papua New Guinea Defence Force are a particular social group for the reasons stated above. Given that country information indicates that payback operates across all areas of Papua New Guinea and that specific conflicts can follow an individual outside of their original area of residence, the Tribunal finds that the real chance of serious harm exists across Papua New Guinea. Having regard to the resource constraints within the police force, the lack of police presence in parts of Papua New Guinea and the involvement of police in violence against citizens, the Tribunal finds that the state is unable or unwilling to offer protection to the applicant husband and third, fourth and fifth named applicants and that there is are not effective protection measures available.
The Tribunal finds that the applicant husband and third, fourth and fifth named applicants are also owed protection under s.36(2)(a).
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
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 3504

28 July 2021

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