1727467 (Refugee)

1727467 (Refugee) [2022] AATA 3846 (8 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1727467
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:James Lambie
DATE:8 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 August 2022 at 11:48am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – domestic or family violence – credibility concerns – inconsistent evidence – declined to attend Tribunal’s hearing – delay in lodging the visa application – witnesses not made available to the Tribunal – complementary protection – sexual violence towards women – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
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 11 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 3 June 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
The applicant appeared before the Tribunal on 3 June 2021 and 17 August 2021 to give evidence and present arguments. Further hearings set down for 4 November 2021,
3 February 2022, 24 March 2022 and 31 May 2022 were vacated on the night before or the day of the hearings at the applicant’s request. The Tribunal hearings were conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
The applicant was represented in relation to the review and the representative attended the Tribunal hearings.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in ss.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.
Even if a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant meets the refugee criterion and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [age]-year-old national of Papua New Guinea. She was born in [Village 1], [City 1], Western Highlands, Papua New Guinea.
The applicant first arrived in Australia [in] May 2014 on a visitor visa. She then departed and returned to Australia on three occasions in 2014 and 2015 on visitor visas. She last arrived in Australia [in] November 2015. She has remained onshore since.
On 3 June 2016, the applicant applied for a protection visa. That application was subsequently refused by a delegate of the Minister for Home Affairs in a decision made on 11 October 2017.
On 7 November 2017, the applicant applied for merits review of the delegate’s decision to refuse her application for a protection visa.
Claims:
The applicant’s claims, as detailed below, are summarised in her protection visa application, written claims, and the delegate’s decision.
The applicant’s biological mother has passed away. The applicant has lost contact with her biological father. After her mother’s death, the applicant was adopted by her maternal uncle, [Mr A]. [Mr A] customarily adopted her. The applicant claims that the adoption is considered official in Papua New Guinea despite the lack of paperwork.
The applicant is no longer in contact with [Mr A] and his family, because they abused her when she was living with them.
[Mr A] was involved with a gang in Port Moresby and he often drank with the gang members while planning robberies and other criminal activities, including stealing, and abusing and raping women. [Mr A] was violent against women, including his wife and biological daughter.
When she turned 18, [Mr A] began threatening her with knives and other weapons to have sex with him whenever he was drunk.
The applicant left Papua New Guinea because [Mr A] and the people he works with were trying to kill her. They hired people to kill her. When she told [Mr A] that she did not want to have sex with him, he would hit her with weapons, including a bush knife, chain and water hose. These left scars on her hands and legs.
The applicant never tried to report [Mr A] to the police, because she knew they would not do anything to help her, as she was unable to pay them money and the police did not abide by the law. She feared the police, because they were corrupt and supported [Mr A]. She feared that [Mr A] would abuse her more if he found out that she had contacted the police.
The applicant travelled to Australia [in] May 2014 with the assistance of a friend, [Ms B]. When she returned to Papua New Guinea, she found out that [Mr A] had been searching for her everywhere and that he had asked his friends and gang members to search for her.
The applicant claims that she will be sexually and physically abused by [Mr A] and his wife and harmed and/or killed with weapons if she returns to Papua New Guinea.
The applicant claims that she will not be protected by the police if she returns to Papua New Guinea due to the corruption that is prevalent in the country. She claims that [Mr A] can influence the police because he is a man and supported by his gang matters.
She will also be found by [Mr A] or his gang members wherever she goes in Papua New Guinea. She claims that it would not be reasonable for her, as a single young woman, to relocate to another area in Papua New Guinea where there would be no support financially and personally from family and friends to protect her. She claims that relocation would also reduce her employment prospects.
The applicant’s representative, in written submissions dated 21 May 2021, claims that there would be significant risk to the applicant of contracting COVID-19 if she returns to Papua New Guinea. The representative also claims the rates of infection in the country are extremely high and the health system is significantly under-resourced and at risk of collapse.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms, which were lodged on 3 June 2016;
(b)the applicant’s identity documents provided to the Department, being a copy of her passport;
(c)the protection visa decision record dated 11 October 2017, a copy of which has been submitted to the Tribunal by the applicant;
(d)the application for review form dated 7 November 2017;
(e)Department file [number] concerning the applicant’s protection visa application, which includes all documents submitted by the applicant in support of his protection visa application, including:
·a statutory declaration from the applicant, sworn on 10 August 2017;
·written submissions from the applicant’s previous representative dated 11 August 2017;
·a statement from [Ms C], the applicant’s friend dated 14 September 2017;
·a statement from [Pastor D] dated 26 August 2017; and
·photographs of the applicant’s injuries;
(f)all documents submitted to the present Tribunal in support of the applicant’s review application, including:
·a statutory declaration from the applicant, sworn on 6 July 2021;
·written submissions from the applicant’s representative dated 21 May 2021; and
·a statement from [Pastor E] dated 6 July 2021; and
(g)country information on Papua New Guinea, as set out below.
Country of reference:
The applicant claims to be a citizen of Papua New Guinea. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Papua New Guinea is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 3 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin and English languages. The applicant was represented in relation to the review and the representative attended the hearing by telephone.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa she must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee she must have a well- founded fear of persecution in Papua New Guinea. This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if she returned to Papua New Guinea. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Papua New Guinea.
The Tribunal discussed the applicant’s claims as summarised in the applicant’s protection visa application, written claims, and the delegate’s decision. The applicant confirmed that her claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. She stated that they were and that she did not need to change them.
The Tribunal indicated to the applicant and her representative that the applicant had advised that she intended to provide a copy of her birth certificate at the hearing and noted that it had not been received. It reminded the applicant and her representative that the birth certificate had been promised to the delegate four years ago and that the failure to produce it for this application, despite the lengthy opportunity to obtain it, may cause the Tribunal to infer that the contents of any such birth certificate may be adverse to the applicant’s case. The Tribunal asked if the applicant was truly ready to proceed, given that no new material had been presented that might in any way address the evidentiary shortcomings noted by the delegate. The Tribunal noted that the applicant had also promised the delegate a document or statement to confirm her baptismal name of [Name 1], and the details of [Mr F], [Ms B] and [Mr G]. It reminded the applicant that the delegate’s decision was made on the basis that simple aspects of her claim could not be confirmed because she had provided nothing other than her passport. The Tribunal noted that, in addition, the applicant’s previous evidence had mentioned potential witnesses in Australia, or contactable from Australia, who had not provided statements or been called as witnesses and yet appeared to be central to her claims. The Tribunal explained that the absence of that evidence may cause problems for the application, and that the applicant’s representative would give her advice about that. The Tribunal suggested an adjournment in order for the representative to obtain instructions about the evidence required and whether an adjournment to a different day might be appropriate.
The hearing was adjourned to 13 July 2021. On 12 July 2021, the applicant’s representative notified the Tribunal that the applicant had her car broken into and personal belongings stolen earlier that day and requested a postponement of the hearing on the basis that the applicant was feeling sick and stressed from the theft. The Tribunal granted the request, and the hearing was postponed at the applicant’s request to 3 August 2021.
On 2 August 2021, the Tribunal wrote to the applicant’s representative advising that the hearing listed on 3 August 2021 had been postponed to 17 August 2021 due to the COVID-19-related lockdown in Brisbane.
The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted by telephone, in accordance with the applicant’s request, with the assistance of an interpreter in the Pidgin and English languages. The applicant was represented in relation to the review and the representative attended the hearing by telephone.
The Tribunal reminded the applicant that the original hearing had been adjourned in order to afford her the opportunity to submit evidence in support of her application. The Tribunal noted that she had submitted a copy of her birth certificate, her statutory declaration dated 6 July 2021 and a letter from [Pastor E] of [Church 1] of Papua New Guinea, [Suburb 1], dated 6 July 2021.
The Tribunal indicated to the applicant and her representative that the additional material did not seem to place the applicant in much better a situation, from an evidentiary perspective, than she was previously.
The Tribunal said that letter from [Pastor E] appeared to be of very little value, because, with the exception of the first paragraph, it was an exact duplicate of the letter from [Pastor D], dated 26 August 2017. The applicant said that the first pastor had died and that she apologised if the English proficiency of the letter from [Pastor E] was not to the Tribunal’s satisfaction. The Tribunal said that its English language expression was perfect, but the problem was that it was essentially identical to the first letter. The reason the Tribunal had requested her to contact the church was to obtain a record to support her claim that she was also known by her baptism name of [Name 1], and also to support her claims as to her family circumstances, particularly her adoption. The Tribunal said that it had also hoped that she could present evidence from her friend [Ms B] who, on the applicant’s evidence, had helped to rescue her from the abusive family situation, and from [Mr F], who could support her claims as to her family situation. However, the telephone number she had provided for [Mr F] did not connect.
The Tribunal asked if there was anyone else who could support her claims about her family situation. She said that her father was still alive and living in [Village 1]. The Tribunal said that her statutory declaration of 10 August 2017 claimed that she lost touch with her father when she was [age] years old, and she had not seen or spoken to him again. She said that was true. The Tribunal said that, in that case, he could not provide much information. The Tribunal put it to her that, in her statutory declaration, she had claimed that friends from church were aware of her situation and, when she was about [age], helped her to travel to Australia. The Tribunal asked if any of these people, some of whom seem to be still in Australia, could confirm any aspect of her claim. She said they had helped her, and she did not want to burden them further. The Tribunal suggested that the ambit of their evidence could be very narrow and yet very helpful. She reiterated that she did not want to burden them further. The Tribunal suggested that the briefest of statutory declarations would help considerably and that the absence of such evidence may have consequences for her application, in that it seemed to the Tribunal that there are witnesses available but who have not been called. This may tend to suggest that their evidence may be adverse to her claims. The Tribunal further suggested that there is an indication that there is someone called [Ms C] who could explain the delay in the applicant applying for a protection visa. The applicant said she had spoken to one of [Ms C]’s children, but that [Ms C] had not got back to her. The Tribunal said that the applicant’s hearing was under way and that, if she had been trying to put her evidence together, she was perfectly entitled to contact the Tribunal to advise that she needed time to finalise her case: the Tribunal had in fact suggested exactly that at the first hearing. The Tribunal indicated that, otherwise, it may take the view that the witnesses would not support her evidence.

The applicant’s representative asked how the Tribunal became aware of this pool of potential witnesses. At this point, it became evident to the Tribunal that the applicant and her representative had not obtained access to the Department file. The Tribunal adjourned the hearing to permit the applicant time properly to prepare her case.
The hearing was adjourned to 4 November 2021. On 3 November 2021, the applicant’s representative wrote to the Tribunal requesting a further hearing postponement on the basis that the applicant’s father had died from COVID-19 and the applicant had been severely depressed. The representative further advised that the representative was unable to make contact with and obtain instructions from the applicant until 3 November 2021. The Tribunal granted the request and the hearing was postponed to 3 February 2022.
On 27 January 2022, the applicant’s representative wrote to the Tribunal requesting a further hearing postponement on the basis that the applicant’s two flatmates had tested positive with COVID-19 and the applicant herself was feeling unwell. The Tribunal granted the request and the hearing was postponed at the applicant’s request to 24 March 2022.
At 5.30pm on 23 March 2022, the Tribunal received an email from the applicant’s representative, advising:
[The applicant] contacted me this afternoon and advised that since she had COVID, she struggles to remember things and gets severe headaches regularly. She explains this is why she has omitted to reply to me regarding the hearing response. She also advises that she insists that a PNG interpreter is required. She instructs that an interpreter from the Solomon Islands is not acceptable.
As such she will not attend tomorrow.
On 7 April 2022, the Tribunal received an email from the applicant, confirming that she wished to proceed with her application. The resumed hearing was set down for 31 May 2022. On 25 May 2022, the Tribunal wrote to the applicant’s representative, noting that there had been no response to the hearing invitation and that no further evidence had been submitted. It also sought confirmation that access to the Department file had been obtained. On 27 May 2022, the applicant’s representative replied, relevantly:
I confirm I have a copy of the Department’s file for the above matter. I confirm that I have sent the hearing notice to the review applicant some time ago. I further confirm that I have emailed the COVID forms, I have left messages on her voicemail, and I have texted her.
I am ringing her after hours so as to hopefully catch her at home and not at work. All to no avail. I have rung her twice a day since Sunday reminding her to send me back the hearing response.
A number of weeks ago I reminded her by email and text she must get the letters confirming her identity from her friends and relatives.
On 27 May 2022, the Tribunal replied to the representative:
The Tribunal notes that the hearing for this application has been adjourned three times and postponed four times. Out of these postponements, only one was postponed by the Tribunal owing to the Covid-19 lockdown in Brisbane. The rest of the postponements were by your request for various reasons, all of which were granted. Two adjournments were granted in order for you to have sufficient time to obtain further evidence to support your claims.
The Tribunal notes the considerable number of hearing postponements and adjournments to provide procedural fairness to you. Any further requests for whatever reason must be accompanied … by a persuasive reason.
At 8.00am on 31 May 2022, the Tribunal received an email from the applicant’s representative as follows:
I refer to my client above and advise that I am under instruction as of 12.22am last night she will be in attendance at the hearing today. There will not be any witnesses in attendance.
I received a text yesterday apologising for not answering my calls.
Then an explanation at 12.22am that her family have been involved in tribal warfare over the elections happening in PNG during the last month. She went on to text that “since last month, they have been kill some of my community tribe (sic). This has led her to be heartbroken (sic).
I replied that she must attend today and give full details of her family, tribe, and story. She replied she would, she further advised upon questioning that she still did not have any letters from her family in PNG or [Ms C] in [Australian Town 1].
At 9.30am on 31 May 2022, the Tribunal was advised that the applicant had not arrived for the hearing but that the representative was in attendance by telephone. The representative said that, as she understood it, the applicant would not attend. The representative said she had advised her client that the Tribunal may then proceed to determining the matter without a hearing and that her client understood. Accordingly, the hearing was vacated.
At 9.48am on 31 May 2022, the Tribunal received an email from the applicant as follows:
I am [the applicant]. My case number is 1727467.
My hearing with tribunal AAT today 31/5/2022 I can’t make it today at this moment, with some issues back at home (Papua New Guinea) trouble fight within clan. They have been fight for last month, my family in a situation where I can’t express myself. I feel for my family there they are not in good condition or health, it’s so painful to leave far away from them in this time of trouble or situation.
I’m not feeling well since I had the news, I’m so depressed, so painful, thinking about them. My family is my world, I can’t express how I feel for my family, I hear that news it’s been worried me a lot. I know it’s been so hard to accept that news I so said and heart broken. Hope you understand me, what I’ve wrote in the truth about my family back at home.
The applicant advised that her representative had ceased acting for her, which was subsequently confirmed by the representative. No request for a further hearing was received. In the circumstances, the Tribunal has considered the application on the basis of the material available to it.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
[The applicant] first entered Australia [in] May 2014 on a tourist visa, departing [in] July 2014. She returned [in] February 2015, departing [in] May. She returned again [in] June 2015 and departed [in] September 2015. She last entered Australia [in] November 2015 and applied for the protection visa on 3 June 2016. Her explanation for the delay is contained in paragraphs 24 to 26 of her statutory declaration of 10 August 2017:
I did not return to PNG because I was very fearful about my life from [Mr A] and his people.
When I met a lady from PNG called [Ms C] during November/December in 2015 in [Suburb 2], I talked to her about my situation. She told me some places where I could go for some advice about my visa. Then she told me that I can go with her and live in [Australian Town 1]. I thought that lady will take me for the advice for my visa but she told me to go myself.
I was so scared to tell my situation to other people. When I met another PNG lady, called [Ms H], I told my situation to her, [Ms H] took me to an office in [Suburb 3], Qld, for advice about my visa. When I came there I was given advice that I can lodge a protection visa application if I wish. Then I decided to apply for a protection visa.
On 14 September 2017, [the applicant] forwarded a copy of a letter from ”[Ms C]”. The letter is undated, and [Ms C] does not provide a surname, although a telephone number is provided. The letter reads, relevantly:
… [the applicant] told me about her situation that she had been through in Papua New Guinea. I was really sad about what she told me about her situation.
I told her that they is a way that you can get advice from them to help you get your bridging visa to protect yourself. I was willing of helping her in that situation.
After celebration we all came to [Australian Town 1] … She stayed with me for five months. She started getting advice from [a legal service] on 6/7/16. They approved her bridging visa on 17/7/16.
[The applicant]’s explanation for the delay appears to be that she assumed [Ms C] would organise the appointment with [the legal service] for her, but that she did not pursue it for a period of some six months until someone by the name of [Ms H] took her to the office. As noted above, the Tribunal reminded [the applicant] and her representative on several occasions that it would assist her to have [Ms C]’s evidence. Her explanations for her failure to call her were not credible, having variously told the Tribunal that [Ms C] was living in Melbourne and [Australian Town 1]. Given that [the applicant] made several trips to Australia, organised by the family of her friend [Ms B] – who, on her evidence, knew of the situation – and stayed with an expatriate Papua New Guinean family, her claims to have been without assistance or local knowledge are not convincing.
Although the delay is not decisive on the issue of the genuineness of [the applicant]’s claim, it is a factor that the Tribunal takes into account in assessing the credibility of her claims.
The Tribunal has had regard to the following country information on Papua New Guinea relevant to the applicant’s claims.
The Department of Foreign Affairs and Trade’s[3] latest country information report on Papua New Guinea reports the following on domestic violence:
3.34 Levels 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.
3.35 The 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.
3.36 The 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.
3.37 The 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.
3.38 A 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.
3.39 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. DFAT 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.
[3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Papua New Guinea’ (10 February 2017) at p 17.
The Tribunal has also considered country information it had obtained from other sources.
Women in Papua New Guinea face very high levels of societal violence. Sexual harassment of women is widespread and severe.[4] A 2019 Women, Peace, and Security index of women’s ‘well being’ worldwide scored PNG .658 (1 being ideal) and ranked it 117 (of 167 countries).[5] The PNG government in 2016 described gender-based violence as endemic,[6] and stated that 2 in 3 women were said to be affected by it.[7] A 2013 study predicted that 70 per cent of women would experience rape and assault in their lifetime.[8] However a 2014 report stated that data on violence in PNG was so ‘patchy and scarce’ that it was not possible to state whether gender-based violence had increased or decreased.[9] In the largest survey of gender-based violence (GBV) (6176 incidents reported from May 2013 to November 2016 to seven non-governmental organisations (NGOs) in five provinces), 65.6 per cent of perpetrators were the intimate partner of the complainant; 78 per cent of complainants were female. The surveyed NGOs had most frequently provided counselling and mediation, occasionally refuge accommodation and repatriation; they referred to courts usually only cases unresolvable within the family or involving criminal physical and sexual violence. 40.1 per cent of 6063 of the incidents involved physical or sexual violence.[10] The Papua New Guinea Demographic and Health Survey 2016-2018 found that, of 4873 women aged 15 to 49 surveyed, 56 per cent had experienced physical violence since the age of 15, and 28 per cent sexual violence. Physical violence was experienced by more divorced, separated or widowed women (experienced by 70 per cent) and currently-married women (63 per cent) than never-married women (30 per cent). 78 per cent of surveyed ever-married women who experienced physical violence and 77 per cent who experienced sexual violence, reported their current husband as its perpetrator. 66 per cent of never-married women who experienced sexual violence reported current or former boyfriends, and 6 per cent strangers, as its perpetrator.[11] The National Health Information System Data Base recorded in 2018-2020 20,609 victims of intimate partner violence (IPV) and 18,759 ‘sexual violence cases’ were provided with medical care.[12] The PNG GBV Sub-Cluster Group in June 2020 reported a 31 per cent decrease in the number of clients accessing GBV services after COVID-19, as transport limitations, increased caregiving and domestic responsibilities, and lack of COVID-19 information, raised barriers to access.[13] 647 cases of domestic violence were reported in Port Moresby in June 2020, according to the Police Minister.[14]
[4] 'Country Reports on Human Rights Practices for 2020 - Papua New Guinea', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.15 Section 6.
[5] 'Women Peace and Security Index 2019/20', Georgetown Institute for Women, Peace and Security, pp.vi, 1, 27, 28, 61 & B & C, 25 October 2019.
[6] ‘National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Papua New Guinea’, [Advance Version], Government of Papua New Guinea, [United Nations General Assembly.] Human Rights Council, 3 May 2016, p.18.
[7] ‘Understanding Gender-Based and Sorcery Related Violence in Papua New Guinea. An Analysis Of Data Collected From Oxfam Partners 2013-2016’, Thomas V, Kauli J & Rawstorne P (Queensland University of Technology for Oxfam, undated [document created 19/11/2017]), p. 9.
[8] ‘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.7.
[9] 'Violence against women in PNG: How men are getting away with murder', Chandler J, Lowy Institute for International Policy, August 2014 [document created 28/8/2014].
[10] ‘Understanding Gender-Based and Sorcery Related Violence in Papua New Guinea. An Analysis Of Data Collected From Oxfam Partners 2013-2016’, Thomas V, Kauli J & Rawstorne P (Queensland University of Technology for Oxfam, undated [document created 19/11/2017]), pp.10, 8, 12, 14, 16, 15, 25 & 18; ‘Bloodlust hysteria' - sorcery accusations a brutal death sentence in Papua New Guinea’, Helen Davidson, The Guardian, 4 January 2018.
[11] ‘Papua New Guinea Demographic and Health Survey 2016-18’, National Statistical Office, Papua New Guinea, and The DHS Program, ICF, [26] November 2019, pp.289, 290, 291-292 including Figure 16.1, 301 at Table 16.3, 302 at Table 16.4, & 303 at Table 16.6, on The DCF Program, USAID website; 'PNG health survey shows 56% of women suffer violence at age 15', Pacific Media Centre, 5 July 2020.
[12] ‘Report To Parliament: Part 1. Inquiry Into Gender-Based Violence In Papua New Guinea’, Special Parliamentary Committee on Gender-Based Violence, National Parliament of Papua New Guinea, 9 August 2021, pp.23-24 including footnote ‘22 This data comes from the Submission from the National Department of Health, 30 June 2021.’ & p.7 including footnote 2.
[13] ‘Report To Parliament: Part 1. Inquiry Into Gender-Based Violence In Papua New Guinea’, Special Parliamentary Committee on Gender-Based Violence, National Parliament of Papua New Guinea, 9 August 2021, pp.24-25 including footnote ‘29 PNG GBV Sub-Cluster Group (June 2020) The State of Gender-Based Violence during the COVID-19 Crisis and State of Emergency, UNFPA PNG: Port Morseby.’ [sic] &.pp.7-8 including footnote 8.
[14] ‘Papua New Guinea women demand end to domestic violence after death of 19-year-old mother Jenelyn Kennedy’, Whiting N & Harriman B, ABC News [Australian Broadcasting Corporation News], 4 July 2020; 'World Report 2021. Events of 2020', Human Rights Watch, [13 January] 2021, pp. 526-531 ‘Papua New Guinea’ at 526; ‘Submission to the Universal Periodic Review of Papua New Guinea’, Human Rights Watch, March 2021 [document created 1/04/2021], p.[2] paragraph 5.

Only a small proportion of women in Papua New Guinea who experience societal violence seek help from the police. The Papua New Guinea Demographic and Health Survey 2016-2018 found that 35 per cent of surveyed women who had experienced physical or sexual violence had sought help; most commonly seeking the help from their family (72 per cent had), and less commonly from their husband’s family (13 per cent), friends (11 per cent), neighbours (11 per cent), police (10 per cent), social work organisations (3 per cent) and doctors/medical personnel (3 per cent). 15 per cent of surveyed women who had experienced both physical and sexual violence sought help from the police.[15]
[15] ‘Papua New Guinea Demographic and Health Survey 2016-18’, National Statistical Office, Papua New Guinea, and The DHS Program, ICF, [26] November 2019, pp.297 including Figure 16.4, 313 at Table 16.17, & 314 at Table 16.18, on The DCF Program, USAID website; 'PNG health survey shows 56% of women suffer violence at age 15', Pacific Media Centre, 5 July 2020.
Sexual violence has long been criminalised, and the Family Protection Act 2013 criminalised domestic violence and allowed victims to obtain protection orders; however parliament only passed Regulations to implement the Act in May 2017.[16] In October 2017 the National Capital District Family Sexual Violence Action Committee Secretariat revealed that 414 cases handled in 2016-2017 had resulted in 2 convictions; its Case Coordinator said most GBV cases were not prosecuted because police treated domestic violence and GBV as “accepted behaviour”.[17] In October 2017 Prime Minister Peter O'Neill said that despite the law, his government could not stop violence against women without active community support.[18] It was then being reported that police and prosecutors typically mandated mediation, compensation and reconciliation, and had rarely pursued investigations or laid criminal charges against family violence perpetrators.[19]
[16] ‘World Report 2018’, Human Rights Watch, 18 January 2018, p.417; Freedom in the World 2016 - Papua New Guinea’, Freedom House, 29 August 2016.
[17] ‘How is the Family Protection Act doing four years on?’, Maribu G, The National, 17 November 2017.
[18] ‘Test for men’, The National, 26 October 2017; 'Domestic violence: PNG journalist Rosalyn Albaniel Evara's death sparks outrage, investigation', Pacific Beat, ABC [Australian Broadcasting Commission] News, 26 October 2017.
[19] ‘Human Rights Watch World Report 2019’, Human Rights Watch, 17 January 2019, p.456; ‘World Report 2018’, Human Rights Watch, 18 January 2018, p.417; ‘Understanding Gender-Based and Sorcery Related Violence in Papua New Guinea. An Analysis Of Data Collected From Oxfam Partners 2013-2016’, Thomas V, Kauli J & Rawstorne P (Queensland University of Technology for Oxfam, undated [document created 19/11/2017]), p. 25; Freedom in the World 2016 - Papua New Guinea’, Freedom House, 29 August 2016.
In view of the country information, provided that the applicant’s claims of experiencing and fearing domestic violence are credible, the Tribunal would be inclined to consider that her claim to have a well-founded fear of persecution were she to return to Papua New Guinea also to be credible. However, there are aspects of her evidence which require clarification and explanation, in the absence of which the Tribunal cannot be satisfied of the veracity of her claims overall. The Tribunal repeatedly adjourned the hearing of this matter in order to afford [the applicant] the opportunity to obtain the material she needed to support her claims. [The applicant] has repeatedly sought to defer or cancel the hearings with poorly attested or unattested reasons. As the Tribunal indicated to her representative, it has had no choice but to determine the matter on the evidence before it.
The first matter that arises relates to [the applicant]’s family composition as described in her protection visa application, her statutory declarations, and her birth certificate. This assumes some importance in attempting to understand [the applicant]’s claims relating to the violence in her adoptive family.
At Part C, question 42 of her protection visa application, [the applicant] lists [Mr A] and [Ms I] as her adoptive father and stepmother, respectively. She lists her deceased mother as [Ms J], along with three half brothers and a half sister also surnamed [J] and additionally or alternatively [the applicant’s surname]. She gives her biological father’s name as [Name 2], possibly by entry of his details in the wrong field, intending [Mr K].
In her statutory declaration of 10 August 2017, [the applicant] states:
My biological father was [Mr K]. My biological mother was [Ms J]. My mother died in 2008 when I was [age] years old … as a result of an injury she had sustained by an accident during her pregnancy … I have lost contact with my biological father from when my mother died …
I have four biological siblings, [named]. I do not have any contact with my siblings too because I left my family home after my mother’s death…
Because [the applicant] does not provide any dates or years of birth of her half siblings in her protection visa application and only the brief details above, it is unknown how the half siblings took the surname [J]. The fact that they have alternative surnames of [the applicant’s surname] suggests that [the applicant] was born after the dissolution of an earlier relationship between [Ms J] and a [Mr J]. However, the fact that [Ms J] retained the surname [J] may suggest that [the applicant] is the older child in the family and that [Ms J]’s relationship with [Mr K] dissolved some years before her death. There may be alternative cultural explanations. There is no guidance from the statutory declarations or the written submissions.
The matter is further complicated by [the applicant]’s account of her adoption:
After my mother’s death, my mother’s biological brother (my maternal uncle), [Mr A], adopted me but he did not adopt any of my other siblings …
It is not explained how [Ms J]’s brother came to bear the surname of her husband. Further, [the applicant]’s birth certificate gives [Ms J]’s name in [year] as [Ms L].
[The applicant]’s statutory declaration of 6 July 2021 states, in the context of her relationship to [Mr F] (which is discussed further below):
My mother’s name was [Ms L] …
My father’s name was [Mr K] …
My paternal grandfather had two wives. One wife’s name was [Ms M] the other wife’s name was [Ms N].
My mother was borne from the marriage of my [Grandfather] and [Ms M].
[Mr F] was a grandchild from the marriage of my [grandfather] and [Ms N].
The Tribunal suspects that this statutory declaration is mistaken, and that [the applicant] means that her father was born of the marriage of [her Grandfather] and [Ms M]. The other possibilities are that her parents were half-siblings or closer, or that she has mistaken the terms ‘maternal’ and ‘paternal’, perhaps in both statutory declarations. If it is the latter, it might explain why [Mr A] adopted only her and not her siblings, to whom [Mr A] was not related. However, it is by no means possible to determine this from the material before the Tribunal. This is material, because the Tribunal must accept that her adoption by [Mr A]’s family occurred as she claimed as the context for her claimed abuse. It is also the context for her losing all contact with her natural father. Had she attended the hearing as set down, the Tribunal could have clarified this issue and asked why, when she was [age], her father was unable to provide for and protect her. The Tribunal would also have been able to ask how it was that, having claimed to have lost all contact with her grandmother, father, siblings, and stepsiblings/cousins, she could tell the Tribunal that her family in Papua New Guinea are her world (see paragraph 52).
Had [the applicant] attended the hearing, the Tribunal would also have been able to ask about details of her involvement with her church, as described in the letters from [Pastor D] and [Pastor E], and sought evidence as to what the church community both in [City 1] and Port Moresby knew of her situation. The Tribunal also expected that representatives of the church may be able to explain why she is named as [Name 1] in their correspondence and the provenance of that name. In the absence of that evidence, the correspondence from the church is of no value to [the applicant]’s application.
Had [the applicant] attended the hearing, the Tribunal would have been able to seek corroborative evidence from [Mr G] and [Ms B] about [the applicant]’s claims. In her statutory declaration of 10 August 2017, [the applicant] stated:
I did tell friends from church about my family situation and they helped me with money and second hand clothes. The parents of one of my friends, [Ms B], told me that they would help me with a 3-moth visa to come to Australia. They provided me with everything. [Ms B] helped me to apply for the 3-month visa, which was granted on 16 April 2014.
I first came to Australia [in] May 2014 with [Ms B]. I wanted to come early but I did not know anything about Australia, so I had to wait for [Ms B] to come to Australia with me. I did not tell anything about my visa grant to [Mr A] and his family. I kept everything secret.
For the first time when I came to Australia [in] May 2014, I stayed in Australia for 2 months with [Ms B]’s relative in [City 2], Qld, and then I returned to Papua New Guinea. I did not want to return to PNG but I did not know how I could stay in Australia for longer.
Later in the statutory declaration, [the applicant] stated that [Ms B] arranged for her subsequent visitor visas, and that [Ms B]’s family paid for her airline tickets for her travel to Australia [in] February 2015 [and] June 2015. She does not say how she funded her flight [in] November 2015.
At part C, question 45, of her protection visa application, [the applicant] nominated [Mr G] as a personal contact in Australia. [Mr G] was identified as an Australian national, living in [Suburb 4]. No telephone number is provided. However, on [the applicant]’s incoming passenger card [in] May 2014, [Mr G]’s address and telephone number are provided[20]. [The applicant] did not say in her statutory declaration why [Mr G] could not provide evidence in support of her application. She told the delegate she would be able to contact [Mr G], but has provided nothing from him, and no further details since that time. She told the delegate she had made some, apparently minimal, attempts to contact [Ms B] but the “phone goes to voicemail when she calls.” The Tribunal considers that, had the matter proceeded to a full hearing, the Tribunal would have derived considerable assistance from the evidence of [Mr G] and [Ms B], or either of them, as to [the applicant]’s personal history and as to any reason for the delay in lodging the protection visa application. Conversely, the Tribunal may have drawn adverse inferences from [the applicant]’s apparent reluctance to make them available.
[20] The incoming passenger cards are all completed in the same hand, a matter upon which the Tribunal would have sought evidence from [the applicant] and others, should the application have proceeded to a full hearing.
In her statutory declaration of 10 August 2017, [the applicant] stated that she travelled to Australia with [Ms B] [in] May 2014 and that, in relation to her subsequent travel,
I needed to stay in Papua New Guinea [until] February 2015. [Ms B]’s family had bought my plane tickets and I came to Australia (alone) at that time. I did not have any problem to travel alone at that time because I had already been to Australia but I was fearful that [Mr A] and his people will see me.
In her interview with the delegate, [the applicant] was asked who she travelled with. She reiterated that she had first travelled with [Ms B] and alone thereafter. When she was asked if anyone travelled with her [in] February, she “was not forthcoming with her response.” it was put to [the applicant] that, on both the [date] May 2014 and [date] February 2015 flights, an [Mr F] was travelling with her. The decision record states:
The applicant stated that she travelled with [Mr F] who was [Ms B]’s brother and he was put down as her brother as a safety measure from her adopted father’s abuse. The applicant was unable to provide any details of [Mr F] but stated that she would look to gain the information from [Ms B].
I put to the applicant that the information she provided in her written statement conflicted with her oral statement regarding [Mr F] travelling with her. I also put to the applicant that the Department had information that states [Mr F] was part of the PNG police force and I find it difficult to understand that given her circumstances, he was unwilling to assist in protecting her from her adopted father. The applicant agreed that she had not provided the information about [Mr F] because it was [Ms B]’s brother. She also stated that she did not want to comment further about [Mr F] because she did not have the information and did not want to lie about anything.
On the Department file are internal case notes[21] recording queries made of [the applicant]’s visitor visa application by Immigration officials. A note on 10 April 2014 records:
[21] [Department file number], folios 90 and 91
Travel supported by brother – [Mr F] who holds a [multi-entry] and is employed by with the PNG police force … support letter from [Mr F] … movement shows brother recently returned in Jan after a 3 day trip.
Further inquiries were made by the Department in relation to a visitor visa granted on 8 August 2014, which [the applicant] did not subsequently use:
1. PA [[the applicant]] stated she is travelling with father [Mr F] and [Ms B] for 3 months holiday, visiting family; doesn’t have any activities planned for the stay. Asked about last visit of [two months], PA said she watched state of origin game, didn’t visit anywhere, stayed home; stated didn’t visit place properly so need to back and visit friends. Asked about travel dates: PA stated depends on dad, when he is ready they will go, but they are waiting for the visa. Father is planning to take them do they don’t know exactly when but it is for holiday, maybe Christmas.
Father’s number: [Mr F] 7190xxxx.
2. Spoke to [Mr F] who confirmed he was covering this trip and that he was intending on taking his sister (not daughter) on a trip for a week or so. When asked about the recent trip of over two months and whether a similar stay was proposed he stated this was not the case and that this trip was for a week or so.
There is a further case noted dated 20 January 2015:
Single and unemployed. Travelling to Australia for holidays for 2 weeks. Trip fully funded by brother [Mr F].
Had the application proceeded to a full hearing, the Tribunal would have put this material, and the inconsistencies with her statutory declaration, to [the applicant] for explanation. It would have sought a full explanation and clarification from her of her true relationship with [Mr F], and her reasons why, as a member of the Papua New Guinea police force, he was not in a position to protect her. It would also have requested that [Mr F] be made available to give evidence, and would likely have drawn adverse inferences should he fail to do so without good reason, given that he appears to be a frequent visitor to Australia. The Tribunal would have sought from [Mr F] any evidence he could provide in relation to [the applicant]’s claims, whether he had indeed funded her travel, and any information he could provide as to the delay in [the applicant]’s lodgement of her protection visa application. In the absence of such evidence, the Tribunal considers that [the applicant]’s claims must be attended by significant doubt.
[The applicant]’s statutory declaration of 6 July 2021 does not materially assist the Tribunal in this regard. As noted in paragraph 78 above, she states that [Mr F] shares a grandfather with her, but a different grandmother. She continued:
Western society would regard [Mr F] and my relationship status as step cousins.
However, PNG society is very close and families live together or at the very least live in the same village.
[Mr F] and I were close when we were young, he is older than me and he often referred to me as being like his younger sister.
Many of the villagers referred to us as brother and sister only because we all came from the same Paternal Grandfather.
Out of respect I addressed [Mr F] as Uncle, this term is used for many male relatives when older than oneself.
Because of the conflicting nature of the evidence as to the nature of the relationship, and [the applicant]’s initial unwillingness to accept there was any relationship at all, I would not be inclined to accept this statement without significant clarification and corroboration from [Mr F].
There are a number of other matters which the Tribunal would also have sought to resolve should the matter have proceeded to a full hearing.
At paragraph 8 of her statutory declaration of 10 August 2017, [the applicant] stated:
After [Mr A] adopted me [in about 2008], we lived in [Village 1] [[City 1]] initially. However after sometime (when I was around [age] years old [about 2009]) [Mr A], [Ms I], [Ms O], [Ms P], [Mr Q], [Mr R] and I moved to Port Moresby for [Mr A]’s work …
This is the first mention in her statutory declaration of living in Port Moresby. However, in her protection visa application, Part C, question 81 (“Previous addresses”), she claims to have lived in [Village 2], [City 1], only from September 1995 to January 1998, and to have lived in [Suburb 5], Port Moresby, from January 1998 to May 2014. Her education history (Part C, question 85) shows she attended [School 1], in [Suburb 6], Port Moresby from March 2001 to March 2010, and then [School 2] from March 2011 to November 2012 (leaving at the end of year [level]). The Tribunal would have sought an explanation of these inconsistencies had the matter proceeded to a full hearing.
At paragraph 13 of the same statutory declaration, [the applicant] stated:
When I was 18, he started threatening me with knives and other weapons to have sex with him whenever he was drunk. He was a terrible person, he had even raped his own daughter, [Ms O]. She was 2 years older than me.
At the addendum to her protection visa application, Part C, question 42 (“Family members”), [the applicant] gives [Ms O]’s year of birth as [year], or 5 years younger than [the applicant]. I further note that all of her adopted siblings, except the youngest, have [City 1] as their place of birth for the years 2000 to 2012. This is inconsistent with the history given in paragraph 8 of her statutory declaration.
Finally, in an email dated 11 August 2017 are some photographs of purported injuries intended to reference paragraph 14 of the statutory declaration, which reads:
Whenever I told [Mr A] that I did not want to have sex with him, he would hit me with the weapons, such [as] bush knife, chain, water hose etc. This has left scars on my body (on my hands and legs).
The photographs appear to show a superficial scar on the shin and a very small scar on one finger. There is no indication of their cause. The Tribunal would not have been prepared to accept these photographs as evidence of her claims without basic medical evidence in support of them.
In all of the circumstances, there is very little, if any, element of [the applicant]’s claims that are free from significant doubt. The matters of her family composition, name, history, claimed adoption, movements, and reasons for the delay in lodging her protection visa application are all subject to inconsistencies in the evidence, or the absence of expected evidence. Because [the applicant] has not availed herself of the opportunity to resolve these inconsistencies and gaps in the evidence, the Tribunal is unable to be satisfied of the veracity of her claims in any meaningful respect.
Cumulative claims

Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of domestic or family violence, or any other reason if she returns to Papua New Guinea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Papua New Guinea. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm?
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal has given very careful thought to the country information that strongly indicates that the prevalence of violence, including sexual violence, to women in Papua New Guinea is very high. The Tribunal has also taken into account the country information that the level of state protection afforded to female victims of domestic and family violence, and sexual violence is generally poor. However, the applicant has not satisfied the Tribunal the claimed domestic and family violence occurred at the hands of [Mr A], or other members of his family, or any other person associated with him, as claimed, or at all. She has also provided no evidence upon which the Tribunal could be satisfied that she fears, or has reason to fear, the commission of violence against her by any person other than [Mr A]. When presented with material that tended to suggest that she enjoyed protection and material assistance from her friends and family, her responses were evasive. She repeatedly failed to provide further information in the hearings offered to her. The Tribunal therefore cannot be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia, there is a real risk that she will suffer significant harm.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Papua New Guinea now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Papua New Guinea that there is a real risk that she will suffer significant harm.
Overall Conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision

101. The Tribunal affirms the decision not to grant the applicant a protection visa.
James Lambie
Senior 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.
…

[2022] AATA 3846

8 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction