1725125 (Refugee)

This matter concerned an application for a protection visa by a woman from Papua New Guinea. The applicant claimed to fear her husband or his tribesmen would kill her, citing past domestic violence and her status as a separated woman in Papua New Guinea. The Department had refused her visa application, and she sought merits review of that decision. The Tribunal considered whether the applicant met the criteria for a protection visa or was entitled to complementary protection.

The primary legal issues before the Tribunal were whether the applicant met the refugee criterion under section 36(2)(a) of the Migration Act 1958 (Cth) and, if not, whether she qualified for complementary protection under section 36(2)(aa) of the Act. This involved assessing the applicant's claims of past harm, her subjective fear of future harm, the availability of state protection in Papua New Guinea, and whether her fear was a necessary and foreseeable consequence of being removed from Australia. The Tribunal also had to consider the weight to be given to the applicant's evidence, including her delay in applying for a protection visa after her initial arrival in Australia.

The Tribunal noted that the delegate had accepted the applicant had experienced serious harm from her husband but had not accepted threats or harm from his friends. The delegate also accepted a subjective fear of harm by her husband and his friends, and that the applicant had received assistance from her doctor and community leaders. However, the delegate found the applicant had not been harmed by her husband for approximately four years prior to her last arrival and had not seen or heard from him for some two and a half years. The delegate also found the applicant had embellished her claims of fear, partly due to the significant delay between her first visit to Australia in 2009 and her protection visa application in 2016. The Tribunal concluded that the matter should be remitted for reconsideration, indicating that the delegate's decision did not adequately address all relevant aspects of the applicant's claims.