1814085 (Refugee)

This matter concerned an application for a protection visa by a family unit, including the first-named applicant, her husband (also referred to as the second-named applicant and the primary applicant in a previous proceeding), and their two children (the third and fourth named applicants). The dispute centred on whether the applicants met the criteria for a protection visa under the Migration Act 1958 (Cth), specifically concerning well-founded fears of persecution or risks of significant harm upon return to Papua New Guinea. The decision was made by a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicants were persons in respect of whom Australia had protection obligations under the 'refugee' criterion (s.36(2)(a) of the Act) or the 'complementary protection' criterion (s.36(2)(aa) of the Act). Additionally, the Tribunal considered whether the children qualified for a protection visa as members of the same family unit as a parent who met the criteria, pursuant to s.36(2)(b) of the Act.

The Tribunal found that the husband, previously granted a protection visa as a refugee, would not return to Papua New Guinea if his family did. Consequently, the first-named applicant and the second-named applicant (the husband) would return as single women without male protection. The Tribunal accepted that this group, defined by their gender and lack of male protection, constituted a particular social group for the purposes of the Refugees Convention, and that the first and second named applicants would belong to this group upon return. The Tribunal noted the high prevalence of gender-based violence in Papua New Guinea, including outside the domestic sphere. While not satisfied that the other applicants met the refugee or complementary protection criteria in their own right, the Tribunal found that the third named applicant was the son of the first named applicant and a member of the same family unit. The Tribunal remitted the matter for reconsideration, directing that the first and second named applicants satisfy s.36(2)(a) of the Migration Act, and that the third named applicant satisfy s.36(2)(b)(i) on the basis of membership of the same family unit as the first named applicant.