1907107 (Refugee)

The Administrative Appeals Tribunal considered the protection visa application of a woman from Papua New Guinea (PNG) and her children. The applicant claimed she fled PNG due to fear for her life, stemming from domestic violence perpetrated by her former de facto partner, Mr. [B]. She also alleged corruption within the PNG legal system, preventing her from obtaining justice or child maintenance. The Tribunal's decision was to remit the matter for reconsideration, directing that the first applicant be found to satisfy the refugee criterion under s.36(2)(a) of the Migration Act 1958, and that her children satisfy the criterion under s.36(2)(b)(i) as members of her family unit.

The primary legal issues before the Tribunal were whether the applicant met the definition of a refugee under s.36(2)(a) of the Migration Act, and if not, whether she was entitled to complementary protection under s.36(2)(aa). Specifically, the Tribunal had to determine if the applicant held a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if effective protection measures were unavailable in PNG. A further issue was whether the applicant's children qualified for a protection visa as members of her family unit.

The Tribunal reasoned that the applicant constituted a member of the particular social group of "single women or women in Papua New Guinea." It found that while PNG law criminalises domestic violence, there is a systemic and discriminatory failure by state authorities to enforce these laws, rendering effective protection unavailable. Drawing on extensive country information, the Tribunal concluded that women in PNG, particularly single women, face a real chance of being discriminatorily denied state protection against serious harm from non-state actors, such as her former partner. This failure of state protection, combined with the applicant's history of violence and threats from Mr. [B], led the Tribunal to find a well-founded fear of persecution. The Tribunal also accepted that the applicant's children were members of her family unit for the purposes of the Act.