1903944 (Refugee)

1903944 (Refugee) [2024] AATA 4074 (16 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Jennifer Nugent
CASE NUMBER: 1903944

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:David James
DATE:16 September 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 16 September 2024 at 11:45am

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – young woman – no familial protection – gender-based violence – physical assault – fear of killing – Wantokism – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
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 dependants.
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 Home Affairs on 12 February 2019 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 (PNG), applied for the visa on 31 January 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk they will suffer significant harm as defined in s 36(2A) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 20 February 2019. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant was represented in relation to the review.
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 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.
The criterion in s 5J(1)(a) contain a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to PNG, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, which have been considered by the Tribunal:
·The applicants’ protection visa application submitted on 31 January 2017, and a copy of the applicant’s bio-data page of her PNG passport;
·Refugee and Immigration Legal Service (Rails) written submission, dated 31 January 2017;
·RAILS written submission, dated 20 September 2018;
·Statutory Declaration of [Mother A], applicant’s mother, declared on 12 October 2018 and the annexed PNG Certificate of Birth Entry in the name of [Mother A] and an undated psychological assessment report under the hand of [a named] Clinical Psychologist in relation to [Mother A];
·RAILS written ‘Post Interview’ submission, dated 14 November 2018;
·The applicant’s application for review of 20 February 2019 and the attached Decision Record of 12 February 2019;
·The administrative and movement records of the Department relating to the applicant;
·Applicant’s Statutory declaration of 27 June 2024, in which she declares in part, that:
I am [an age] year old girl. I am in [grade] at [School 1]. My favourite subjects are English and sport.
I came to Australia with my brother [Brother A] when I was [age] years old.
I live with my mother, [Mother A]. My mother in an Australian citizen. My brother [Brother A] is renting his won place and working in [Suburb 1]. He is a permanent resident. He holds a child visa.
I don’t have any other brothers or sisters. I don’t have any contact with my father.
I am not close with most relatives back in PNG, except for my mother’s parents who are tool elderly to take care of me. I say hello to my mother’s siblings (my aunts and uncles) when they ring to speak to my mother. My aunts and uncles would not be able to look after me because they have their own children to look after.
My mother and I do not want me to return to PNG. I really like living here in Australia with my mother. It is very safe here compared to PNG. In PNG, girls get kidnapped, raped or killed. Also life is very difficult there for girls and women.
·Applicant’s representative’s written submissions of 4 September 2024, in which in part, and as relevant, it is submitted :
…
Protection Claims
[The applicant] is a national of Papua New Guinea (PNG), her home village is [name] in [Town 1]. [The applicant] is currently [age] years old. Without the necessary familial protection in PNG, it is submitted that [the applicant] is at risk as a single female. She is at risk of homelessness, and has a well-founded fear of sexual and physical assault. We rely on the country of origin information (COI) within PNG in support of these submissions.
Since [the applicant] left Papua New Guinea when she was around [age] years of age, [she] has little memory of the time she spent in Papua New Guinea. However, prior to coming to Australia, [the applicant] lived with her brother, [Brother A], and her maternal grandparents, but was otherwise without familial support. Due to the deteriorating health and growing age of her grandparents, [the applicant] is at serious risk of harm on the basis of her gender, age and having no familial protections.
[In] December 2016, [the applicant] arrived in Australia on a Visitor Visa (FA-600). She applied for a Protection Visa on 31 January 2017. Her mother, [Mother A], attended the Protection Visa interview on 21 September 2018 on her behalf…
…In assessing the criteria for protection, a decision maker must assess whether the applicant has a well-founded fear of persecution, as outlined within s 5J of the Act. It is submitted that there is a real and substantial risk [the applicant] would suffer persecution for the purposes of s 5J(4), and that fear is well-founded.
[The applicant] is at risk of the above-mentioned persecution by reason of her membership of a particular social group, namely, a young female from PNG.
If returned to Papua New Guinea, [the applicant] would not be able to seek effective protection from the authorities as outline in s 5LA. It is submitted that country information is highly consistent with [the applicant’s] claims and indicates that the risk of her suffering harm now or in the reasonably foreseeable future is neither far-fetched nor fanciful: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (429) (McHugh J).
It is submitted that in her personal circumstances, [the applicant] is unable to relocate to another area of PNG.
In addition to and as an alternative [the applicant] is at more than remote risk of suffering the following instances of significant harm:
1.arbitrary deprivation of life; and/or
2.cruel or inhuman treatment or punishment and degrading treatment; and/or
3.significant harm of the kind identified by the Federal Circuit Court of Australia…
…
Objective Element
As to the objective element, we draw the Tribunal’s attention to the following country of origin information. Human Rights Watch describes Papua New Guinea, as “one of the most dangerous places for a woman or a girl” (Human Rights Watch, World Report 2020 – Papua New Guinea (Web Report, December 2020 -
Wantokism
Whilst we acknowledge the social kinship system in PNG of ‘wantokism’, it is submitted that [the applicant] will not be protected within this system.
As the Delegate raised in the Decision, the wantok system underpins PNG’s society and culture. As described in the Department of Foreign Affairs and Trade’s (DFAT) most recent report regarding PNG:
“In PNG, the overall welfare of the tribe and its members is paramount. Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures those members of the tribe less able to look after themselves are supported”
Although the wantok system, through kinship ties and social bonds, provides informal and limited social protection, it is submitted that following [Mother A’s] marriage to [Mr A], she and her family are no longer viewed as belonging to [Mother A's] tribe. Through customary marriage, a woman’s rights and securities within the wantok system are given over to her husband and his tribe.
Given [Mr A] abandoned [the applicant] and her brother [Brother A] in 2009, will not be able to access the protection of her father’s tribe through the wantok system if returned to PNG. [Mother A] outlined this in her Statutory Declaration dated 12 October 2018, when she stated that, “In my case, I got married but I had problems. When I went back to my village, I had no name there. I had no value there. They will treat my children in the same way. There will be no one to look after them…”
…It is further noted that the wantok system is weakening, and many people are being pushed back into deeper poverty. While we accept that [the applicant] was able to be supported by her grandparents in the past, we emphasise that with her grandparents’ growing old age and declining health, it is impossible for her grandparents to care for [the applicant]. Given the average life expectancy is around 65 years old in PNG, [the applicant’s] grandparents are not in a position to provide continued protection for her in her remaining years as a child, and her future years as a young woman within PNG.
It is also noted that [the applicant’s] aunts and uncles are already struggling to look after their own children, having fallen into poverty themselves. Without the cultural responsibility over [the applicant], her aunts and uncles would be both unable and unwilling to look after [the applicant]…
…
Male Protection
Angelica Neville, verifies this submission, in her findings that ‘being without ‘familial protection’ or a ‘male guardian’ puts women at an added risk of being assaulted in PNG’ (Angelica Neville, ‘Fleeing into persecution: sending women to PNG’ (Web page, 22 July 2013, Right Now gender based violence in PNG Archives - Right Now). Single women in PNG, in both urban and rural areas, ‘experience a palpable fear of crime…[because they are] aware that they are viewed as easier targets (Amnesty International, Papua New Guinea: Violence Against Women: Not Inevitable, Never Acceptable! September 2006 21 Papua New Guinea: Violence against women: never Inevitable, never acceptable! amnesty.org).
This Tribunal (differently constituted) stated that ‘single women outside the protection of their family or relatives are at risk of violence, including sexual violence,’ (1501572 (Refugee) [2017] AATA 304 13 February 2017 at [27]). In a different decision, the Tribunal also held that single women and single mothers in PNG face discrimination and hardship (1503733 (refugee) [2017] AATA 1799 13 September 2017 at [52])
Country information shows that committing acts of sexual violence against women can be considered a rite of passage for some men, noting that ‘danger comes from the Raskol gangs that rule the settlements in big towns and the capital city…[where] raping women is a ‘must’ for young members of the gang (Vlad Sokhin, Crying Meri, 2014, available at submit that [the applicant], as a single female, faces a real chance of physical and sexual violence if she is returned to Papua New Guinea, which is further heightened by the disconnection from her family…
The prevalence of gender based violence in PNG is reflective of traditional and patriarchal norms such as bride prices and polygamous marriages, which are entrenched features of PNG society. This contributes to the wide range of manifestations of gender-based violence in the home, community and institutional settings (Office of the High Commissioner, UN Human Rights Office, Special Rapporteur on Violence against women finalises country mission in Papua New Guinea, 26 March 2012
We submit that the level of violence that women, as a social group, experience in Papua New Guinea society clearly establishes that the risk of [the applicant] experiencing such harm in the future could not be described as being remote, far-fetched or fanciful (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 389, 406-7, 396-8, 428-9)…
PERSECUTION
…
Based on the COI material above, if [the applicant] returns to Papua New Guinea, she is at risk of serious harm for the following reasons:
a.    She will receive threats to her personal life and liberty as a single female without male protection;
b.    She will be subject to physical harassment and ill-treatment as a status as a single female without male protection;
c.     She will be subject economic hardship due to her status as a single female without male protection.
It is on this basis that we submit that [the applicant] is at risk of persecution if she were to return to Papua New Guinea.
Claims for protection
The applicant in her application for the visa claims that her mother left PNG in 2009 and sought protection in Australia. Since her mother left PNG, she and her older brother [Brother A] have been living with their maternal grandparents in [Town 1], PNG. She and her brother left PNG [in] December 2016 when she was aged [age] years of age to come to Australia because their grandparents are elderly and could no longer care for them. Her claims for protection (as summarised) are that:

•      Her grandparents will not be able to support her, and she would become homeless and desperate if she returned to PNG;
•      She fears that she will be at risk as a young girl without familial protection and/or parental care of being sold as a child bride, kidnapped and/or forced into prostitution or slavery;
•      As a young girl without familial and/or parental protection she fears being harmed and/or raped; and
•      She will be separated from her mother who is an Australian citizen and she has no other close family members in PNG.
Department interview

The applicant was not interviewed by the Department.
Delegate’s decision
The delegate’s decision of 12 February 2019 to refuse the protection visa was made on the information before the delegate. The delegate did not accept that the applicant would be without familial support and protection or that she would become homeless. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 7 August 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 10 September 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 9 September 2024, the Tribunal after careful consideration of the material before the Tribunal determined that it could make a favourable decision in relation to the applicant’s matter without the applicant having to appear before the Tribunal to give oral evidence and make arguments. The Tribunal that day then cancelled the applicant’s scheduled hearing and emailed the applicant’s representative and informed them that:
The Senior Member would like to inform you that after reviewing the application he has formed the view that a favourable decision can be made on the information that is before the Tribunal without the applicant having to appear at the scheduled hearing of 10 September 2024 to give evidence and make arguments.
Country information
The Tribunal has taken into account the DFAT Country Information Report Papua New Guinea, 6 September 2022, as relevant, including the information as to ‘Wantokism’, where it is explained that:
‘Wantokism’ is a system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society. Wantokism affects most aspects of contemporary life in PNG, including in business and government. In the Tok Pisin language, Wantok means ‘One Talk’, referring to the language of the tribe or clan to which a person belongs. In PNG, the overall welfare of the tribe and its members is paramount. Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures those members of the tribe less able to look after themselves are supported.
Under the heading of ‘Women’ from 3.17 to 3.25, it is reported at 3.19 to 3.20 and at 3.22 and 3.25, that:
DFAT assesses that women across PNG face a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict their ability to fully participate 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 Highlands provinces are at particular risk, although violence against women occurs nationwide. Women who are subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.
‘Bride price’ payment remains a common cultural practice in PNG (including among elites). A bride price is a sum of money ranging from PGK2,500 (about AUD1,050) to PGK300,000 (about AUD126, 490) paid to the woman's family by the groom or his family. Bride price is a long-standing Melanesian tradition, and is intended to strengthen familial bonds. However, in recent years it has become increasingly monetised and led to a sense of ‘ownership’ of wives in some cases, giving husbands a sense of entitlement which can be seen as permitting violence. Furthermore, an obligation to pay back bride price in the case of marriage breakdown has complicated the ability of women to leave violent relationships, with their own families sometimes pressuring women to return to their husbands to avoid triggering such an obligation…
FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Levels of GBV by police officers themselves are high. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. However, the RPNGC has made some progress in recent years, establishing Family and Sexual Violence Units (FSVU) in every province. Sources told DFAT FSVUs represent progress in the policing of GBV, especially with regard to the willingness to investigate and make arrests, and in their connectedness to other services. However, there are not enough FSVUs to respond adequately to the scale of the problem. There are only 106 FSVU officers across the country and at the time of publication, there is a single FSVU officer in Tari, capital of the Highlands province of Hela, to cover the whole province (population of around 250,000). FSVU officers are typically subject to the same resource constraints as the rest of the RPNGC…
While women’s refuges exist in PNG, they are insufficient for the level of GBV that exists. Sources report that Port Moresby, a city of 800,000 people, has only six safe houses for women suffering GBV, open to the public, and mostly run by faith-based organisations. Some of these safe houses have as few as two rooms, one for the survivor and one for a carer, while others can accommodate up to 10 survivors in a shared room. The situation for abused children is even tighter, with very few safe houses able to accommodate unaccompanied children.
And under the heading of ‘Police’ from 5.3 to 5.6, it is reported at 5.3 and 5.6 that:
The Royal Papua New Guinea Constabulary (RPNGC) is the national police force responsible for the investigation of crime and maintaining internal security in all regions of the country. At the time of independence in 1975, police services were estimated to only cover around 10 per cent of the country’s total land area and 40 per cent of the population. Since then, the size of the RPNGC has increased by only 30 per cent, while the overall population has more than quadrupled. In 2022, the strength of the RPNGC is approximately 5,500 personnel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC…
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of PNG and provided a copy her passport to the Department. Based on this material, the Tribunal finds that the applicant is who she says she is, and a national of PNG. PNG is therefore the receiving country for the purpose of assessing the applicants claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
Particular social group (PSG) of being a ‘young single women without parental and/or familial support or a male protector’
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal has considered the provisions of s 5L of the Act, which provides that a person is to be treated as a member of a PSG other than that person’s family if a characteristic, other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic. Additionally, that characteristic is innate or immutable or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
In its consideration the Tribunal finds on the material before it, that the applicant is a member of a PSG being a ‘young single women without parental and/or familial support or a male protector’.
The Tribunal after considering the material before it, as has been outlined above at paragraph 15, together with the relevant DFAT country information that has been outlined above at paragraph 21, together with the applicant’s representative’s submission is satisfied that the applicant given her absence from PNG for over eight years and the limited contact she has had with her PNG extended family would be without familial support and protection if she returned to PNG in the reasonably foreseeable future.
Given the applicant’s age and circumstances in so far as her mother and brother are respectively an Australian citizen and a permanent resident together with her maternal grandparents being elderly, the Tribunal finds that the applicant upon any foreseeable future return to PNG would be socially isolated and without a male and/or active family protector such that she would face a real chance of being subjected to gender based violence, a bride price and/or sexual violence in PNG. In accordance with the DFAT country information.
Therefore, on the evidence before it, and for the reason outlined above, the Tribunal, is satisfied that the applicant faces a real chance of persecution involving serious harm if she was in the reasonably foreseeable future to return to PNG because of her membership of the PSG of being a ‘young single women without parental and/or familial support or a male protector’.
The Tribunal finds that the applicant’s fears in this regard are well-founded.
Refugee criterion
The Tribunal, having considered all of the applicant’s claims both individually and cumulatively, does accept that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of the applicant’s membership of the particular social group, of being a ‘young single women without parental and/or familial support or a male protector’ in all areas of their receiving country, PNG. The Tribunal also finds on the evidence before it, that the applicant in this regard cannot rely upon the PNG authorities to provide protection to them given the DFAT country information as to the RPNGC’s ability to provide protection for vulnerable cohorts which is assessed as being severely limited. Therefore the Tribunal also finds that there are not effective protection measures available to the applicant from the PNG authorities: s 5J(2).
Therefore, the Tribunal finds that the applicant’s fears of persecution through her membership of the particular social groups of being a ‘young single women without parental and/or familial support or a male protector’ are well-founded as required by s 5J of the Act, and therefore, the applicant is a refugee within the definition of s 5H of the Act.
Having found that the applicant is a refugee the Tribunal has also considered whether the applicant has a right to enter and reside in another country other than Australia. The Tribunal finds that the applicant does not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies

s 36(2)(a) of the Act.
David James

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.
…

[2024] AATA 4074

16 September 2024

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