1918837 (Refugee)

1918837 (Refugee) [2023] AATA 3282 (10 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1918837
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:10 July 2023
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 10 July 2023 at 1:01pm
CATCHWORDS
REFUGEE – Protection Visa –Papua New Guinea – a victim of domestic violence in PNG – – membership of a particular social group – women subject to domestic and family violence in their marriage where a ‘Bride price’ has been paid’ – women who have left abusive partners – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65,411, 499
Migration Regulations 1994, Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 13 June 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 May 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 she will suffer significant harm as defined in s 36(2)(aa) 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 (Tribunal) on 12 July 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 primary applicant appeared before the Tribunal on 6 July 2023 to give evidence and present arguments.
The applicant was not 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.
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
Country of reference
According to the protection visa application, the applicant claims to be citizen of PNG and provided a copy of her PNG passport, 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 applicant’s claims for protection.
Issues
The issues in this review is 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 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 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 applicant’s protection visa application form submitted on 31 May 2017 by the applicant’s then representative’s Refugee & Immigration Legal Service (RAILS);
·applicant’s letter to the Department of 13 March 2019 (post interview statement referred to below at paragraph 20) , unsigned and dated 6 March 2019 withdrawing her original claims and clarifying her claims for protection: see paragraph 20 below;
·applicant’s application for review (12 July 2019) and attached protection visa decision record of 13 June 2019; and
·administrative and movement records of the Department relating to the applicant.
Claims for protection
The applicant when applying for the visa outlined her claims for protection as being that:
·[Tribe 1] will find her and kill her because her tribe killed an important man from [Tribe 2] in 2012, and she has since been targeted for tribal violence ever since;
·her family moved to Port Moresby in 2012 and lived in hiding from their tribal enemies until 2017;
·in 2017 [Tribe 2] found her family in Port Moresby and killed her father and abducted her mother;
·she fears returning to PNG as she will be targeted for tribal violence; and
·she does not believe that the PNG police can protect her as they cannot stay with her the whole time and there is nowhere safe for her in PNG.
Department interview
The applicant was interviewed by the Department on 15 February 2019.
During her interview with the Department the applicant claimed to fear tribal violence because her father had been killed in the tribal disputes between [Tribe 3 and Tribe 4] tribes in the highlands of PNG in 1995, almost 20 years earlier.
Applicant’s post interview written statement – clarification of claims
On 13 March 2019 the applicant submitted an unsigned statement to the Department dated 6 March 2019 in which she stated that:
·that her protection claims outlined in her protection visa application were “made up” and had been fabricated because she feared she did not have sufficient evidence to support the true story of why she left PNG;
·the applicant claimed that her father, and as such, she is from [Tribe 3]. She states that her biological father was killed in a tribal fight between [Tribe 3 and Tribe 4] when she was [age]-years-of-age. She further claimed that her biological father was the main financier of [Tribe 3] in their ongoing conflict with [Tribe 4]. She states that her father was involved in distributing weapons before being violently killed in 1995;
·the applicant claims that she, her mother and her older sister moved to Lae, where her mother remarried and then later relocated with the family to Port Moresby;
·the applicant claims that in 2007 while she was still in high school in Lae, she met and married her husband, whom she had fallen pregnant to, causing her to leave school. The applicant claims that her husband became physically abusive and violent to her after their daughter was born. However as he had paid the ‘Bride price’ for her she did not feel capable of leaving him;
·the applicant claims that in 2015 after being told that her sister [Ms A]’s house in Port Moresby had burnt down killing [Ms A]’s [age]-year-old son she sought and was given permission by her husband to go to Port Moresby for the funeral. The applicant claims that after she returned to her husband, he recommenced abusing her and was physically violent to her striking and kicking her causing her to miscarry their unborn second child;
·the applicant claims that in 2016 her former husband allowed her to travel to Port Moresby to attend her brother’ university graduation. After attending this graduation, she did not return to her husband. She claims that her husband then began sending text messages to her threatening violence and demanding that she return to him; and
·the applicant claims that because of these threats and her fear of further violence from her husband she left PNG and came to Australia to seek protection.
Delegate’s decision
The delegate’s decision of 13 June 2019 to refuse the Protection visa was made on the information before the delegate. The delegate accepted that applicant’s father was killed in tribal fighting in 1995 but did not accept that the applicant or any of her family members have subsequently been targeted by tribal enemies. The delegate also did not accept that the applicant was a victim of domestic violence in PNG and that her former husband had issued death threats against her following her departure in 2016. Therefore, the delegate was not satisfied that the 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 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 8 June 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Thursday 6 July 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 29 June 2023 the applicant emailed the Tribunal her completed ‘response to hearing invitation’ form in which she indicated that she would be participating in the scheduled review hearing alone and that she did not require the assistance of an interpreter.
Review hearing – 6 July 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The 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 had received some information from the Refugee and Immigration Legal Service (RAILS) when they assisted her in completing her application for protection, but she did not fully understand the criteria.
Given the applicant’s limited understanding of the criteria and that she was appearing unrepresented at the hearing the Tribunal provided an outline of the refugee and complementary criteria to the applicant, who acknowledged that she now understood the criteria.
The Tribunal questioned the applicant as to her claims outlining her statement to the department of 13 March 2019 and dated 6 March 2019; see paragraph 18 above. The applicant told the Tribunal that the only claim for protection that she maintained was that of her fears of harm from her husband given their history of domestic violence.
The applicant in reply to the Tribunal stated that she had no fears of harm arising from tribal violence and the death of her biological father over 20 years ago. She explained that her father had died when she was very young and over the years her mother and other relatives had told her that they had suspected that his own tribesman from [Tribe 3] may have poisoned him by sending him some food. She replied to the Tribunal’s questions as to the issue of tribal violence by explaining that there had not been any incidents of tribal violence and/or threats of tribal violence made against her family since her father’s death.
In reply to the Tribunal’s question as to whether she had any fears and/or concerns about being harmed by tribal enemies, she said she had no such fears or concerns now or in the past.
The applicant informed the Tribunal that after arriving in Australia in 2017 she had first stayed with a family in [suburb] which had taken her in through [an] organisation. She explained that after becoming aware of the PNG community living and working at [Town 1], Queensland she moved to [Town 1] in 2019 where she found accommodation and farm work through other PNG members of that community.
In 2019 after living and working in [Town 1] for around 2 years she moved to [Town 2] where she had obtained her current employment as a [occupation] at the [Town 2] [Workplace 1]. She explained that she continues to work at the [Town 2] [Workplace 1] and lives in a share house with some [people] who also work at the [Workplace 1].
The applicant told the Tribunal that she had applied for protection in Australia because she had run away from her former husband leaving her daughter ([Miss B], now [age] years of age) with him in [City 1]. Her mother had brought her to Australia to get away from her husband and she with the assistance of RAILS made her application for protection.
She explained that she had fallen pregnant to her former husband, [Mr C] in [year] with [Miss B] while she was at high school in Lae. She said they had been boyfriend and girlfriend at school and after she fell pregnant, they married in a customary service [the following year] and a ‘Bride price’ of 20,000 kina and 20 pigs had been paid by her husband to her people including her mother and uncle. She explained that her mother at this time lived and worked for [Company 1], and was quite wealthy.
After she married [Mr C], she went to live with him at his house in [a] village in [City 1]. Her mother then set up a [business] in Lae and left [Company 1]. She stated that her mother in 2008 relocated her business to Port Moresby.
She explained that her mother had remarried but later separated and that her sister [Ms A] worked with her mother in the family[business]. She further explained that her sister has recently left the family business due to ongoing disagreements with her mother. She said that her brother [Mr D] had lived with her mother in the family home at Port Moresby with his two [stepbrothers].
She explained that her mother had paid for her (applicant’s) daughter’s school fees in [City 1] until her daughter left school and moved to Port Moresby where she now lives with the applicant’s sister [Ms A].
The applicant in discussing her marriage, told the Tribunal that in 2010 while she was living with her husband in [City 1], he took another wife and that they had then had many arguments about his new wife living with them. She explained that during these arguments her husband would be violent to her hitting and knocking her to the ground where he would often then kick her. In one such incident he kicked her with his boots in her belly causing her to miscarry their second child.
She told the Tribunal that whilst she was recovering from her miscarriage in 2010 in the [City 1] Hospital her uncle came to the hospital and rescued her urging her to stay with him and not go back to her husband. The applicant said that she stayed with her uncle for about two weeks at their family [village] near [City 1] but then returned to her husband. Upon her return to her husband’s house the violence recommenced with her husband again striking and kicking her during arguments and/or minor disagreements some of which related to his new wife living with them in her husband’s house.
When questioned as to whether she had made any complaints to the police about her husband’s treatment of her, she said she had never made any complaints to the police. She explained that the police were very slow to react to such complaints if they reacted at all and that once her husband had found out about her making such a complaint, she feared he would kill or seriously beat and injure her.
In 2016 she asked her husband if she could travel alone to Port Moresby to be present at her brother [Mr D]’s graduation at Port Moresby. After her husband gave her permission to attend her brother’s graduation, she travelled to Port Moresby. After the graduation and at the urging of her mother and sister she remained at her mother’s home in Port Moresby after deciding not to return to her husband. She remained at her mother’s home for about 12 months during which time she initially received many abusive and threatening phone calls and text messages from her husband demanding she return to him and threatening violence against her.

She explained to the Tribunal that as her husband had paid a ‘Bride price’ he had told her and her sister that he owned her, and that she had to return to him as he wanted to know what she was doing in Port Moresby. The applicant said that her mother could re-pay the ‘Bride price’ but that her husband did not want the ‘Bride price’ back and had never asked for the price to be repaid. She further stated that her husband had often asserted that she was his property and that she had to return to him and if not that she would be punished. She explained that she feared that he would take an arm or leg if not kill her to restore his reputation and pride as was the highlands custom and tradition.
The applicant told the Tribunal that the abusive calls and texts were very bad, so she blocked her husband’s calls but that he continued to contact her sister and other relatives via social media where he made threats to her.
While living with her mother it was decided by her mother and sister [Ms A] together with her step- brothers that she and her brother [Mr D] should leave Port Moresby for Australia where she could apply for protection from her husband. The applicant explained that her mother organised her visa and travelled with her and her brother [Mr D] to Australia where with the assistance of RAILS her mother had made her application for protection.
The applicant conceded that the claims made in her application but for her fears of her husband were false and had been made by her mother to improve her prospects of obtaining protection in Australia. As for her brother [Mr D] she stated that he had made similar false claims as he wished to stay in Australia as he had been unable to find employment in PNG.
She indicated that she maintains contact with her mother, daughter and sister [Ms A] via phone and [social media]. However, after [Ms A] re-married in 2019 her mother and [Ms A] have had disagreements about the[business], and they are now estranged. She explained that the break-down of her sister and mother’s relationship has at times limited her contact with them both. She further explained that her mother is presently unwell and has been told not to have direct contact with others including her family, but that she did not understand or know the details of her mother’s present illness.
The applicant said that through her contact with her sister [Ms A] via [social media], she had been told that her husband had spoken to [Ms A] when she had visited [City 1] last year (2022) and that he had asked about when the applicant was returning to PNG. She stated that he had also made threats to harm her (the applicant) and demanded that she return to his house upon her return to PNG. The applicant said that her husband knew where her mother’s and sister’s homes were in PNG and followed her sister on [social media]. She further stated that over the past several years he had continued to convey his threats of harm to the applicant through her sister [Ms A] via the telephone and/or social media.
The applicant conceded that during the 12 months she lived with her mother in Port Moresby, before coming to Australia, she had not seen her husband and she was not aware of him having travelled to Port Moresby to look for her. However, she stated that he had made many threats in abusive calls and social media postings which resulted in her blocking him on her phone and on social media accounts.
She also explained that given her mother’s illness and that her sister [Ms A] was now estranged from her mother and living with her own family she would not be able to receive assistance from her family if she returned to PNG. In that regard, she highlighted that her sister had recently asked for money from her.
The applicant told the Tribunal that given her need for support if she returned to PNG her only options would be to return to Port Moresby where her mother and sister resided or her tribe’s village in the Highlands. She explained that given her former husband’s knowledge of her family and their whereabouts together with the likelihood of him finding out about her having returned she did not believe she could safely relocate within PNG. Additionally she explained that she did not believe that she rely upon any assistance from police for the reasons she had already provided to the Tribunal.
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.
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].
Country information
The Tribunal has taken into account as required the relevant DFAT Country Information together with other relevant open-source country information. In that regard, the Tribunal has considered the DFAT Report Papua New Guinea, 6 September 2022, as relevant and including the information under the heading of ‘Women’ at 3.17 to 3.25, where at 3.19 to 3.20 and at 3.22 and 3.25 it is reported 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.
Analysis
The Tribunal found the applicant to be an honest and reliable witness that replied to the questions of the Tribunal in a timely manner and often made concessions which could have been viewed as adverse to her claims. The Tribunal also accepts that the applicant’s initial claims were made by her family members on her behalf with an intention to embellish her claims so that she may have better prospects in obtaining protection in Australia.
Having had the benefit of assessing the applicant during the hearing, the Tribunal is satisfied that the false claims made in her application and later withdrawn were made by her family and that she both later in correspondence to the Department and at the hearing sought to withdraw and clarify same as best she could.
The Tribunal is satisfied on the evidence before it that the applicant:
·fell pregnant with her daughter [Miss B] to her then boyfriend [Mr C] in [year] while she was at high school in Lae, PNG;
·that she later married [Mr C] in a customary service in [year] after he paid a ‘Bride price’ of 20,000 kina and 20 pigs to her family and her people. That after her marriage she moved to [a] village at [City 1] where she lived with her husband;
·that while living with her husband at [City 1] she was the subject of domestic and family violence from her husband which was in the form of both regular and continuing verbal and physical abuse often involving him striking and kicking her during arguments;
·that in 2010 her husband took another wife who then lived with her and her husband. That during arguments with her husband about his new wife he often hit her knocking her to the ground where he would then kick her. During one such incident her husband kicked her in her belly whilst she was pregnant with their second child causing her to miscarry;
·that after recovering from her miscarriage in hospital she left her husband with the assistance of her uncle and then remained at her uncle’s village for several weeks. She later returned to her husband where his regular verbal abuse and physical violence towards her recommenced;
·that in 2016 after obtaining her husband’s permission she travelled to Port Moresby to attend her brother’s graduation and upon the urging of her mother and sister she remained with her mother in Port Moresby to escape the violence from her husband;
·that while she stayed with her mother, her husband contacted both her, her mother and her sister via telephone and social media demanding that she return to him at [City 1] and threatening further physical violence stating that he would kill her because she had left the marriage in which he had paid a ‘Bride price’;
·that her husband told the applicant and her sister that as he had paid a ‘Bride price’ he owned the applicant and that she as his property was required to return to him and if not, he would punish her by causing further physical harm to her;
·that the applicant fears that her husband will find her if she returns to PNG as he knows where all her family live and she fears he will take an arm or leg from her or maybe kill her to restore his reputation and pride in accordance with the Highlands’ custom;
·that her mother and sister organised for the applicant to travel and remain in Australia with her brother [Mr D] so as she may escape the violence of her husband and seek protection in Australia; and
·that since arriving in Australia in 2017 her husband has continued to make threats of violence to the applicant and has enquired as to what the applicant is doing in Australia and when she will be returning to PNG with her family, friends and people from her village in [City 1].
Membership of a particular social groups – ‘women subject to domestic and family violence in their marriage where a ‘Bride price’ has been paid’ and ‘women who have left abusive partners’
The Tribunal has considered the provisions of s 5L of the Act. Those provisions provide that a person is to be treated as a member of particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by the members of that group and the person shares or is perceived as sharing that characteristic which is an innate or immutable characteristic and is so fundamental to the member’s identity or conscience that the member should not be forced to renounce it and that this characteristic distinguishes the group from society.
Upon considering these provisions together with the evidence before the Tribunal, the Tribunal finds that the applicant is a member of the particular social groups of ‘women subject to domestic and family violence in their marriage where a ‘Bride price’ has been paid’ and ‘women who have left abusive partners’.
As to the applicant’s fears of violence including being maimed and/or killed by her husband if she was to return to PNG, the Tribunal accepts that the applicant holds these subjective fears: s 5J(1)(a) of the Act. In assessing whether the applicant has a well-founded fear of persecution in this regard as a member of her respective particular social groups the Tribunal must assess these fears objectively and be satisfied that the applicant faces a ‘real chance’ of persecution: s 5J(1)(b) of the Act.
The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility; and that 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) 169 379.
In this regard, the Tribunal on the evidence before it including the relevant available country information as outlined above at paragraph 56 as to ‘Women’ is satisfied that if the applicant was to return to PNG in the reasonably foreseeable future that the applicant would face a real chance of persecution involving serious harm arising from her membership of the particular social groups of ‘women subject to domestic and family violence in their marriage where a ‘Bride price’ has been paid’ and ‘women who have left abusive partners’.
The Tribunal finds that the applicant’s fears in this regard are well-founded.
Relocation and available protection
Additionally, the Tribunal is also satisfied on the evidence before it that if the applicant was to return to PNG that given her need for some family support to establish and support herself that she would not be able to relocate within PNG and avoid having her estranged husband locate her given his knowledge of and regular contact with members of her village and family in [City 1], Lae and Port Moresby.
The Tribunal after considering the relevant available country information as outlined above at paragraph 56 as to ‘Police’, which provides that family violence is still seen by many police as a private matter in which the state should not intervene; and outlines the very limited support available to women who are the subject of gender-based violence finds that the applicant cannot rely on the PNG authorities to provide effective protection to her.
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 her membership of the particular social groups of ‘women subject to domestic and family violence in their marriage where a ‘Bride price’ has been paid’ and ‘women who have left abusive partners’ in all areas of her receiving country, PNG: s 5J(1)(c). The Tribunal finds on the evidence before it that the 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 applicants’ fears of persecution arising from her membership of the particular social groups of ‘women subject to domestic and family violence in their marriage where a ‘Bride price’ has been paid’ and ‘women who have left abusive partners’ 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 Migration 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.
…

[2023] AATA 3282

10 July 2023

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