1917755 (Refugee)

1917755 (Refugee) [2023] AATA 2496 (23 June 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917755
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE OF DECISION:  23 June 2023
DATE CORRIGENDUM
SIGNED:4 July 2023
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:
·Paragraph 21, insert comma’s after [Mr G] and 2019
·Remove “21” from Delegates Decision Heading before Paragraph 23
·Paragraph 30, replace 2^nd with “second”
·Paragraph 37, replace “Swore Same” with “swore the same”
·Paragraph 49, in first sentence insert commas after [Mr B] and 2011
·Paragraph 55, in final sentence place comma after PNG Government.
·Paragraph 56, replace “Theses” with “these”

David James
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917755
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:23 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration regarding the first, second and third named applicants with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)     that the second and third named applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 23 June 2023 at 12:11pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – membership of particular social groups – forced marriage, domestic violence and single mother – fear of harm from ex-husband – customary marriage after previous relationship and child – abuse by husband and family – second child with previous partner – no action by police after threats by ex-husband against applicant and lawyer – husband’s connections and possible bribes to police – capacity to subsist and support children – elderly father and lack of support from brothers – consistent and credible claims and evidence – statements and oral evidence from lawyer, police report and other supporting statements and documentation – members of family unit – first child living with father, two children secondary applicants and younger children Australian citizens – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 5H(1)(a), 5J(1), (2), 36(2)(a), (aa), (2A), 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v MHA [2019] FCA 836
Abebe v Commonwealth (1999) 197 CLR 510
AVQ15 v MIBP [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 10 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Papua New Guinea (PNG), applied for the visas on 6 June 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the primary applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the primary 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 primary applicant being removed to PNG, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 3 July 2019. The applicants provided a copy of the delegate’s decision with the application for review.
As noted above, the applicants 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 applicants protection visas 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 applicants were not represented in relation to the review.
The primary applicant appeared before the Tribunal on 22 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence via telephone from [Ms A], a Solicitor formerly in practice in PNG.
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.
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 (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
The issues in this review is whether the primary 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 primary applicant was returned to PNG she 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 primary applicant will suffer significant harm as defined in s 36(2A) of the Act.
Claims
The primary applicant when applying for the visa stated that she was married in a customary marriage [in] December 2011 to her now ex-husband [Mr B], and that a ‘Bride price’ had been paid. At the time of her marriage, she had a child, [Ms C] who had been born from an earlier relationship between the applicant and her child’s father, [Mr D]. Her family had not approved of her relationship with [Mr D] and so they arranged her marriage to [Mr B]. She claims that she left PNG to seek protection in Australia for the following (summarised) reasons:
·She experienced a lot of harm and abuse from her ex-husband who would have his brothers abuse her and indecently touch her while he told her she was a ‘dirty filthy whore’.
·She could not take the abuse and so she ran away with her boyfriend and went into hiding in his village at [Village] in [District] of [Province] of PNG, where she became pregnant. She remained there for four months before travelling to Port Moresby for antenatal services.
·Her ex-husband wanted to and attempted to take her life and her child’s life at Port Moresby when she was pregnant with her then unborn child.
·She feared for her unborn child’s life as her ex-husband [Mr B] was angry with her for leaving him for someone else and especially getting pregnant outside of their marriage.
·She went to the police about her ex-husband’s treatment of her several times, but he would bribe the police, so they did not make a case against him. She also went to a lawyer to get a restraining order, but her ex-husband threatened to kill her and as he also had some evidence against her (the lawyer) he had threatened to have the lawyers practising certificate revoked.
·She then saw her dad, who helped her escape with her baby to Australia.
·If she returns to PNG with her daughter [the second applicant], she will be killed in revenge by her ex-husband.
·There is no one in her family who can properly protect or defend her and her daughter as her father is just an old man and her brothers do not have a good relationship with her as they believe she has brought customary shame upon them and believe that she deserves whatever bad things happen to her.
·She has no opportunity to gain employment in PNG or build a life there because of the influence of her ex-husband in the PNG community.
[Migration Advocates] in correspondence dated 6 September 2016 provided the Department with a written pre-interview submission and the following attachments (documents) in support of the applicant’s claims:
·Statutory Declaration - [Mr E] (applicant’s father).
·Statement, [Ms A], dated 28 August 2016.
·Police Statement, Senior Inspector [F], dated 28 April 2016.
·Police Report, Inspector [G], dated 30 August 2016.
·PNG Office of the Director of Child & Family Services letter dated [March] 2012.
The primary applicant’s then representatives in their submission discussed the refugee and complementary criteria and provided an outline of the applicant’s personal background as relevant to her claims with reference to the supporting attachments (documents). The submission summarised the applicant’s substantive claims as being that:
·     She fears for [the second applicant] and her safety if they go back because her husband will attempt to physically harm and kill them, especially [the second applicant] as her birth brings humiliation to her husband.
·     She fears her family and authorities will not be able to protect her and her young children. This fear is a well-founded fear supported by Papua New Guinea Police Officer statements.
·     [The applicant] has had her life and her children’s lives threatened by her husband on several occasions. Complaints were made but the Police Authority failed to prosecute her husband due to the well-known corruption, again supported by Papua New Guinea Police Officer statements
·     She has no opportunity to get work or build a life in PNG because of the influence her husband has in the community.
·     The law in PNG does not provide sufficient protection.
·     Her brothers believe [the applicant] deserves what she gets as they believe she went against her marriage vows and their culture and will not protect her.
·     She fears moving to another district in PNG with three young children as a single woman as PNG is not safe and she would be vulnerable to harm from her husband or others.
·     Corruption in the country and police force will not guarantee her or her family’s protection in other provinces.
·     Living in fear, constantly moving and hiding will have detrimental effects on her young children’s health and mental well-being.
The applicant’s former representatives submit in their correspondence that:
[The applicant] is a person whom Australia has obligations to protect. She fears that if she returned to Papua New Guinea, she would be physically and sexually abused and targeted by her husband and his family and tribesman. The supporting evidence shows that it is a fact that the police are unable to adequately protect [the applicant] or her young daughter in Papua New Guinea. Furthermore the evidence shows that violence in Papua New Guinea is rising. The cost to [the applicant] if she returned to Papua New Guinea will be her liberty, her family and possibly her life.
The Tribunal notes that [Ms A], in her statement of 28 August 2016 states (in part) that:
[In] April 2012, I was approached by [the applicant] who asked me to assist in her obtaining a Restraining Order from the Port Moresby District Court from her partner [Mr B] …
When the court documents were filed, [the applicant] attended court on two occasions and when about time to obtaining the orders, [Mr B] influenced the court system and a couple of adjournments followed on after the two hearings and just one court date when [the applicant] failed to appear the matter was struck out.
When the case was filed, I was approached on three occasions and received several calls from [Mr B] who bluntly and rudely ordered me not to advise or illegally assist [the applicant] in any way.
[Mr B] threatened that he would use his influence and contacts to remove my practising certificate if I assist [the applicant] in any way.
[In] July 2012, [the applicant] who was then heavily pregnant and was staying over at her parent’s house in [Suburb], National Capital District, had her room windows broken into by Rascals at midnight when she was fast asleep and was badly attacked but was quickly saved after her brothers who woke up from her screams and fought and tried to catch all three men but were able to catch one who gave evidence of being sent by [Mr B] to attack [the applicant].
The matter was reported to the police and the rascal caught was jailed. Charges were laid and criminal proceedings were to proceed in the criminal court however there were no listings for several weeks after many follow-ups to the police and prosecutor’s office by [the applicant]’s family…
However, I advise [the applicant] that since my safety was greatly at risk including hers and her baby’s life from [Mr B]’s threats and abuse; and being very influential in using the system again [the applicant], it would not be wise to use me or any other lawyer to assist now but it would be wise now for herself and her family to immediately obtain a village court summons and have all her relatives and [Mr B] to attend the one day court to immediately obtain orders to dissolve the relationship.
In the Police Report from Inspector [G], dated 30 August 2016 it is reported (in part) that:
He ([Mr B]) was located by police in Port Moresby a couple of times and he strongly denied the allegations. He may have bought the police off to leave him alone and not to charge him.
Corruption and bribery by police officers in Port Moresby is a known thing.
[Mr B] is a known fraudster and is considered a very dangerous man and is capable of doing serious harm to [the applicant] if he locates her any time in Papua New Guinea.
I personally know [Mr B] and know his capabilities very well.
The Tribunal’s own inquiries have confirmed that [Ms A] did so act for the applicant as she states in her statement and that the then Inspector [G] who has since passed away in 2019 was at the time of his report an Inspector of Police with the Royal Papua New Guinea Constabulary attached to the National Police Headquarters at Konedobu as indicated in his police report which bears the logo and heading of the PNG Constabulary with contact details that have also been confirmed.
Department interview
The primary applicant was interviewed by the Department on 31 August 2018.
Delegate’s decision 21
The delegate’s decision of 10 June 2019 to refuse the protection visas was made on the information before the delegate. The delegate dismissed the primary applicant’s claims for protection in their entirety relying in part relied upon the high prevalence of document fraud in PNG, the lack of evidence supportive of the applicant having married [Mr B], her past travel to and from Australia, that she claimed she could not be protected by the police and/or her family given that her father, brother and other family members had previously protected and supported her in PNG and her delay in making her application for the Protection visas. The delegate was not satisfied that the primary applicant met the criteria in s 5H(1) of the Act, and was therefore 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 primary applicant being removed to PNG, there is a real risk that the primary applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 2 June 2023 the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on 22 June 2023 at 9:30 am. This correspondence advised the applicants 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 applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Pre-hearing submissions
On 3 July 2019 the applicant provided the Tribunal with a statement under her hand dated 1 July 2019 in which she repeated her claims and in part provides that:
…As per initial application, I escaped from Papua New Guinea for my safety and that of my unborn child then who is now [Age] years old. I have been living in Australia for over 3 years. I have no home, finance and security in Papua New Guinea. And myself and my children lives are in danger if this appeal is rejected and have to return.
I have 4 children ages ranging from [Age] to [Age] who are currently living with me at the above address. My two younger children were born Australian citizens and the two older (secondary applicants in the review) children are part of this application. Please refer to birth and citizenship certificates with the Dept. of Home Affairs.

On 24 April 2020 the applicant forwarded to the Tribunal a letter of support from a Senior Social Worker at [Health services provider] which outlined the applicant’s family situation as to her four children, soon to be five children and her then pregnancy submitting that an approval of the primary applicant’s visa would allow the primary applicant to be better placed to meet the needs of her unborn child.
On 15 June 2023 the applicant forwarded to the Tribunal written submissions addressing and repeating her claims and with an attached Statutory Declaration under the hand of [Ms H] (primary applicant’s mother) sworn on 15 June 2023 which outlines the applicant’s background and details of her relationships including her marriage to [Mr B]. In her declaration [Ms H] provides an account of the applicant’s customary marriage to [Mr B] and the subsequent violence the applicant was subjected to, together with the details of her daughter’s marriage breakdown which is consistent with the primary applicant’s stated claims. Additionally, attached to the submission were copies of the birth certificates of the primary applicant’s three youngest Australian children; [Child 1], born [Date], at Brisbane; [Child 2], born [Date], at Brisbane and [Child 3], born 10 April 2019 at Brisbane.
Country information
The Tribunal has taken into account the DFAT Country Information Report Papua New Guinea, 6 September 2022, as relevant, including the information under the heading of ‘Economic Overview’ at 2.7 to 2.10 where at 2.7 and 2.8 it is reported that:
PNG is classified by the World Bank as a lower middle-income country and classified by the Asian Development Bank as a conflict-affected, fragile state, meaning that economic development is challenging and state capacity is limited. The country’s economy remains dominated by two broad sectors: the agricultural, forestry, and fishing sector that engages most of PNG’s labour force (the majority informally); and the minerals and energy extraction sector that accounts for most export earnings and GDP. According to the World Bank, in 2020, PNG’s GDP per capita was USD2,757, lower than its level in 2014. (By comparison, Australia’s GDP per capita in 2020 was USD51,692). PNG ranked 155^th out of 189 countries, according to the UN’s 2020 Human Development Index.
PNG is a poor country. The majority of the roughly 80 per cent of Papua New Guineans who live in traditional rural communities make their living from subsistence gardens and small-scale cash cropping. According to a measure of poverty used by the World Bank, 85 per cent of the people of PNG are considered poor, due to their lack of disposable income, low level of educational attainment and low level of access to electricity. Only about 15 per cent of PNG residents have reliable access to electricity, among the lowest level in the world.
Under the heading of ‘Corruption’ at 2.11 to 215 where at 2.14 and 2.15 it is reported that:
Both petty and grand corruption are perceived to be common in PNG. Respondents to a survey by a PNG researcher in 2021 stated that providing ‘public officials and others money for lunch, Coca-Cola, bus fare, buai (betelnut), phone credit cards and other gifts’ was often expected as a reward for providing a government service or ‘favours’.
Prime Minister James Marape came to office with a promise to fight corruption, but the passage of key anti-corruption legislation (Whistle Blower Act, ICAC’s establishment and the Proceeds of Crime Amendment Act) has not translated into meaningful progress.
As to the heading of ‘Women’ at 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’ at 5.3 to 5.6 where at 5.3 and 5.6 it is reported 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.
Review hearing – 23 May 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language.
The applicant appeared with her 2^nd and third eldest children the secondary dependant applicants in the review. At the commencement of the hearing the applicant requested that the secondary dependant applicants who were not going to give oral evidence be removed from the hearing room so as they would not be subject to hearing the applicant’s anticipated oral evidence as to incidents of Domestic Violence. The Tribunal indicated it had not objection as to this course of action and the secondary dependant applicants subsequently left the hearing room and remained in the Tribunal’s reception under the supervision of Tribunal staff.
The Tribunal explained to the primary applicant that the hearing would consider the applicants application for the protection visas afresh. The primary applicant when questioned by the Tribunal as to her understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, explained that she understood the criteria as it had been explained her to her by her former representatives and she had additionally conducted her own research on the criteria.
The primary applicant told the Tribunal that she was currently living in Brisbane with her sister, an Australian citizen who had previously been granted a Protection visa in Australia. She further explained that her sister was presently studying [Subject]. She said her sister has a [Age]- year-old-child who is also an Australian citizen and normally resides with her sister, but who was currently in PNG with their father’s family.
The primary applicant told the Tribunal that five of her six children were living with her in Brisbane and that the youngest three children were all Australian citizens born from her relationship with their father, [Mr I]. She explained her oldest child [Ms A] who is now [Age] is presently staying with her biological father [Mr J] in Port Moresby while she attends school there and that she is presently completing her year [Number] studies. The primary applicant stated that her next two eldest children were not Australian citizens like her three youngest children and that they were the secondary dependant applicants in the Review.
The primary applicant explained that she was now estranged from her most recent partner, [Mr I], the father of her younger Australian children and that she has obtained a Domestic and Family Violence protection Order against him prohibiting from having any contact with her and their children.
The Tribunal discussed its earlier inquiries as to the statement from [Ms A] and the report of Inspector [G] (see paragraph 21 above) and indicated that if agreeable to the primary applicant the Tribunal would like to hear oral evidence by telephone from [Ms A].
The primary applicant told the Tribunal that she would like the Tribunal to contact [Ms A] and have [Ms A] give oral evidence at the hearing.
[Ms A] was subsequently contacted by telephone by the Tribunal and in evidence before the Tribunal she confirmed who she was and that in April 2012 that she had been approached by the primary applicant’s father and then later by the primary applicant for assistance in obtaining a Restraining Order against the applicant’s then husband [Mr B]. [Ms A] gave evidence consistent with her statement of 9 June 2016 (see paragraph 19 above) stating that she had prepared her statement and swore same when she was in Brisbane on 9 June 2016. She further told the Tribunal that the primary applicant’s father had also been in Brisbane on that date, and he had also prepared and swore his statement at [Suburb] in Brisbane at the same time.
After confirming the contents of her statement as being true and correct [Ms A] expressed her past and current fears that if the primary applicant was to return to PNG now or in the future that she believed that the primary applicant and her children would be at risk of death or serious harm at the hands of the primary applicant’s former husband, [Mr B] and/or his relatives or his criminal agents. She further expressed her concerns that given [Mr B]’s wealth and his public profile and government connections including his known history of being involved in corruption and the payment of bribes that the primary applicant would not be able to either relocate within PNG or to avail herself of protection from the police and/or the courts in PNG.
The Tribunal after hearing the oral evidence of [Ms A] and noting that the primary applicant had provided several accounts of her personal history and her relationship with her ex-husband [Mr B] previously to the department that were all consistent with both her other accounts and that of her father and mother together with [Ms A], indicated that the tribunal did not need to hear any further evidence.
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 primary applicant claims to be citizen of PNG and provided a copy of her PNG passport, based on this material the Tribunal finds that the primary applicant is who she says she is, and a national of PNG. Additionally, the primary applicant provided copies of the Queensland Birth certificates in relation to the secondary dependant applicants and is equally satisfied that they are who the primary applicant says they are and citizens of PNG. PNG is therefore the receiving country for the purpose of assessing the applicant’s 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.
[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 found the primary applicant to be a credible witness who has provided consistent versions of her own personal history and the circumstances surrounding her arranged customary marriage to her now ex-husband, [Mr B] and the subsequent violence she suffered that was occasioned upon her by her ex-husband, his brothers and others and his agents.
The primary applicant’s versions have at all times maintained her claims and are consistent with her earlier versions provided to the Department. Further the Tribunal notes that the primary applicant’s versions of events and claims are consistent with and supported by the Statements and Declarations of her parents, the Police Report of Inspector [G] and other associated documents and reports and most significantly the statement and oral evidence of her former PNG solicitor [Ms A].
Membership of a particular social group – ‘Women forced into an arranged marriage and subjected to Domestic Violence’ and being an ‘unmarried single mother’
The Tribunal having found the primary applicant to have been an honest, credible and reliable witness accepts the primary applicant’s evidence that she was married in a customary service to her ex-husband [Mr B] a wealthy and politically connected businessman in PNG in 2011 and that her marriage had been arranged by her family who had received a ’Bride price’. The Tribunal also accepts that following her marriage she was subjected to repeated verbal and physical violence by her husband and his brothers and others acting at the direction of her husband and this violence also included her being sexually assaulted by some of these persons.
The Tribunal is also satisfied that the primary applicant made complaints to police in PNG about the abuse and violence she had been subjected to by her husband and others at his direction but that the police failed to take any action against her ex-husband, and this was most likely a result of corrupt payments being made to the police by her ex-husband.
The Tribunal is also satisfied that in 2012 the primary applicant fell pregnant to her husband with her second child and fearing for her unborn child she fled with [Mr D] with whom she had formed a secret relationship with, to his village in the highlands. It is accepted that she later returned to Port Moresby where she went into hiding but was later located by her ex-husband who sent criminals (rascals) to her address where they assaulted her.
It is also accepted that the primary applicant then sought the assistance of [Ms A] who was then a practising solicitor in PNG known to the applicant’s father. [Ms A] sought to assist the applicant with an application for a Restraining Order against her ex-husband which was frustrated in the Courts by the applicant’s ex-husband who had also made threats to [Ms A] forcing her ([Ms A]) to withdraw from providing further assistance to the applicant.

The Tribunal further accepts that the applicant then fled PNG to Australia as claimed to escape the violence and anger of her ex-husband and further harm from him.
Notwithstanding the primary applicant later returned to PNG on several occasions in 2012, 2013 and 2015, and when in PNG remained in hiding with her parents for up to three and half years. And after also taking into consideration the primary applicant’s delay in applying for a Protection visa the Tribunal accepts on the evidence before it and in all the circumstances of this matter that the primary applicant did and does hold reasonable fears for her safety and that of her children.
Given the available and relevant country information as outlined above at paragraph 29, under the headings of ‘Women’, ‘Corruption’ and ‘Police’. Which explains that ‘Bride price’ payments are a common practice in PNG and that in some cases this practice gives a sense of entitlement and/or ownership to the husband together with the prevalence of corruption and the general attitudes of police as to domestic and gender related violence as being private matters and not matters calling for police intervention. The Tribunal accepts the primary applicant’s claims of fear in relation to violence from her husband are in all the circumstances of this matter most reasonable. Additionally, given the country information discussed above the Tribunal is satisfied that the applicant if she was returned to PNG would not be able to obtain protection from the PNG police and/or the PNG Government nor could she safely relocate within PNG to avoid her ex-husband locating her and committing violence against her and her children given his financial resources and government connections.
Additionally, the Tribunal given the primary applicant’s limited work history and limited work skills is also satisfied that if the primary applicant was to return to PNG that she, as she fears, would likely face significant financial hardship. The Tribunal accepts given theses issues and given she cannot seek family assistance for fear of being returned forcibly by her brothers to her ex-husband, the current economic situation in PNG, and the general discrimination against women, especially unmarried single mothers that these additional factors accentuate the primary applicant’s inability to be able to financially support herself and her children if she returned to PNG. It is accepted that primary applicant’s inability to financially support herself and her children would be an issue for her throughout PNG.
Therefore, for the reasons outlined above the Tribunal is satisfied that if the applicant was to return to PNG in the reasonably foreseeable future, she would face a real chance of persecution involving serious harm for reasons of her membership of the particular social groups of ‘Women forced into an arranged marriage and subjected to Domestic Violence’ and being an ‘unmarried single mother’
The Tribunal finds that the applicant’s fears of harm in this regard are well-founded.
DECISION
Refugee criterion
The Tribunal, having considered all of the primary applicant’s claims both individually and cumulatively, does accept that the primary applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of her membership of the particular social groups, of ‘Women forced into an arranged marriage and subjected to Domestic Violence’ and being an ‘unmarried single mother’ in all areas of her receiving country, PNG. The Tribunal finds on the evidence before it that the primary applicant in this regard cannot rely upon the PNG police to provide protection to her and as such there are not effective protection measures available to the applicant from the PNG authorities: s 5J(2).
Therefore, the Tribunal finds that the primary applicants’ fears of persecution arising from her membership of the particular social groups of ‘Women forced into an arranged marriage and subjected to Domestic Violence’ and being an ‘unmarried single mother’ are well-founded as required by s 5J of the Act, and therefore, the primary applicant is a refugee within the definition of s 5H of the Act.
Having found that the primary applicant is a refugee the Tribunal has also considered whether the applicants have a right to enter and reside in another country other than Australia. The Tribunal finds that the applicants do 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 primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
As the secondary dependant applicants are members of the applicant’s same family unit; s 5(1) of the Act, the secondary dependant applicants satisfy s 36(2)(b) of the Act and are refugees and persons of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the primary applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicants are eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration regarding the first, second and third, named applicants with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the second and third named applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
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.
…

[2023] AATA 2496

23 June 2023

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