1921390 (Refugee)

[2024] AATA 2957

1921390 (Refugee) [2024] AATA 2957 (3 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Heidi Davie (MARN: 1679801)

CASE NUMBER:  1921390

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Mia Bailey

DATE:3 July 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other 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 03 July 2024 at 1:36pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – physical abuse by highly-placed ex-husband – forced to stay at home, physical abuse, miscarriages and scarring on body – ex-husband used official connections to track and harass – long residence in safe accommodation – documented medical treatment and trauma counselling – members of family unit younger children – older child’s separate application – adverse information – country information – single woman without male protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA [1989] HCA 62
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 18 July 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 20 December 2018. The delegate refused to grant the visas on the basis that the first named applicant (first applicant) does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and the second and third named applicants, as members of the same family unit as the first applicant, do not satisfy the criteria in s 36(2)(b) or s 36(2)(c) of the Act.

3. The applicants were represented in relation to the review. The first applicant appeared before the Tribunal, with her representative, on 1 May 2024 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. 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. Relevant provisions of the Act are extracted in the attachment to this decision.

5. 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

6. The issue in this case is whether any of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   Background and receiving country

7. The first applicant is a [Age]-year-old female, born in Enga province. The second applicant, a [Age]-year-old male, and the third applicant, an [Age]-year-old female, are her children. Both were born in Port Moresby.

8. The first applicant last arrived in Australia, together with the second applicant, [in] September 2018 on a visitor (subclass 600) visa. The third applicant arrived in Australia [in] November 2018 on a visitor visa.  

9. The first applicant’s older daughter, [Ms A], last arrived in Australia in March 2018 and lodged a separate application for a protection visa.

10. The applicants provided copies of the biodata pages of their Papua New Guinea (PNG) passports and birth certificates as part of their protection visa applications. The original documents were presented to the delegate at the first applicant’s protection visa interview. I find that the applicants are citizens of PNG, and that PNG is their receiving country for the purposes of assessing their claims for protection. 

    Evidence before the delegate

11. Relevant information from the protection visa application is summarised below:

    i.The first applicant resided in [Village 1], Enga province until 2002, other than a 2-year period of residence in [Town 1] to attend college. Since early 2003, she resided in Port Moresby, at [Suburb 1] and subsequently at [Accommodation in Suburb 2]. The period of residence at [Accommodation] is recorded as January 2008 to October 2018.

    ii.The first applicant completed high school in Enga Province and undertook a 2-year course in [Subject] in [Town 1] between 2000 and 2002.

    iii.The first applicant married [Mr B] in January 2000. He is recorded as her ‘ex-spouse’ and is stated to be the [Job title 1] to [Job title 2].

    iv.The first applicant was employed as [an occupation 1] at various [workplaces] in Port Moresby between 2003 and 2008 and 2011 to 2012. Between 2008 and 2018, she sold [products] at [Accommodation] yard.

    v.Regarding family members and contacts in Australia, details are provided of the applicant’s older daughter, [Ms A], and 2 persons (‘Mr P’ and ‘Ms P’) described as the first applicant’s first cousins.    

    vi.Regarding her protection claims, she stated that she left PNG because of physical abuse from her ex-husband, [Mr B], for over 15 years. She was unable to maintain employment as [an occupation 1] because of the abuse. In 2012, he demanded that she stay home to mind their children. She has suffered many miscarriages because of the abuse and has extensive scarring all over her body from the physical abuse.

    vii.[In] August 2017, her husband used his position of power to order the police to assault and arrest her, based on false accusations that she had stolen a car. On that day she was parked outside her home with her son around lunch time. Three police vehicles surrounded the car; several police officers approached her car and pointed a gun at her. They dragged her from the car and physically assaulted her. Her son ran away in fear. Her older daughter came out of the house and screamed at the police to stop. Her husband, who was standing nearby, yelled that she deserved this treatment. She subsequently learnt from a family friend that her husband had contacted the police and ordered them to arrest and beat her. Due to this attack, she suffers [disability] in her [body part].

    viii.She has sought help from several organisations regarding the abuse. She has approached the police but because of her husband’s position and his previous role as a police officer, they always told her to go away. She sought refuge at [Accommodation] where she lived for the past 10 years with other women who are victims of domestic violence. [Accommodation] barred her husband from the accommodation area and was the only place in PNG where she was afforded some level of protection. However, her husband was still able to reach her in public areas.

    ix.She has been an ‘ongoing client’ for many years with the ‘[Organisation 1]’ who have attempted to engage her husband in counselling and are intending to help her obtain a restraining order against her husband. After the police attack in August 2017, she sought help from [a support service] in the [Hospital 1]. She was treated for trauma and referred for trauma counselling. She also sought help after the police attack from the [Hospital 1] for injury to her [body part]. 

    x.She has tried moving to other places in PNG to seek safety, including her cousin’s house, [Accommodation] and Enga province. Her husband used the police and military to locate her. Her family cannot protect her because her husband’s younger sister is married to her uncle and will always tell him of her location because they are fearful of him. She would not be safe from him in any part of PNG.

    xi.If she returns to PNG, she fears that her life would be in danger from her husband. If he finds out that she escaped to Australia, he will be furious and will view her actions as defiance against him. She would be subject to severe disciplinary treatment from him.

12. The applicants submitted to the Department the following supporting documents:

    i.Handwritten statement by the first applicant:

    a.In this document, the first applicant provides further details regarding the incident in which she was assaulted by the police. According to this document, her husband stood watching while the police hit her and, while sitting in the police van on the way to [Suburb 3] police station, he told her she deserved that.

    b.At the police station, she was charged with 3 offences: driving a stolen car, ‘disobedience’ and ‘insulting the police officers’. There was a 200 Kina fine for each offence. That afternoon, her relatives paid ‘bail’ of 600 Kina and she was released. The matter never went to court; she doesn’t know why.

    c.She was later told by a friend of her husband that he had ordered the station commander, ‘Mr FT’, to send his police officers to beat and arrest her.

    d.The abuse from her husband has been an ongoing problem since they married in 2003. She attempted several times to run away but her husband used the ‘forces’ (police and soldiers) to get her back. He knows most of the police because he is an ex-police officer and has his own police officers from the position he holds.

    ii.Letter from [the support service], [Hospital 1] ([support service] letter):

    a.The letter dated 24 September 2018 is signed by a ‘Senior Medical Social Worker’ and states that the first applicant sought advice and counselling at the [support service] on 18 September 2018. She reported that she has been experiencing domestic violence since early 2000.

    b.She was treated at the ‘ENT clinic and [Suburb 1] hospital’ for her injuries. She has old scars from previous injuries sustained from domestic violence.

    c.She presented as ‘very traumatised psychologically’ and was put on trauma counselling and crisis management counselling. She has completed the counselling program.

    iii.Letter from [Organisation 1] (Welfare Services letter):

    a.The letter dated 28 November 2018 is signed by a ‘Welfare/Child Protection Officer’ and states that the first applicant has been a ‘client of this office since she became a victim of some of the most horrendous abuses inflicted on her by her husband.’

    b.They have attempted to call the husband in for counselling to ‘salvage’ the relationship but it has ‘all been in vain’.

    c.The author understands that the first applicant intends to live separately from her husband and pursue child support and is determined to take out a ‘Preventive/Restraining Order’ against her husband. They will assist her once the courts have opened in 2019. 

    iv.Letter from ENT Registrar, [Hospital 1] (ENT letter):

    a.The letter dated 1 October 2017 is signed by an ‘ENT Registrar’ from the Ear, Nose, Throat, Head and Neck Clinic and states that the first applicant presented to the ENT clinic on 29 August 2017 after being allegedly physically assaulted by a police officer.

    b.She was kicked on the right side of her face in front of her home in [Suburb 1] [in] August 2017. She developed severe pain with bleeding from her [body part] and a [test] confirmed ‘[disability]’ due to the injury.

    v.Letter from ‘[Officer] JM’:

    a.The letter dated [September] 2018 is signed by ‘[Officer] JM’, ‘Commander ([Squad])’ and appears on Royal PNG Constabulary (RPNGC) letterhead.

    b.It states that the first applicant sustained injuries while being arrested by police following a complaint by her husband [in] August 2018. Investigations revealed the complaint to be false and the applicant was released without any charge.

    c.Her husband was brought into the police station, cautioned for continuously harassing and beating his wife and making false allegations to police. A ‘final warning’ was given to her husband and he was released. He was told to maintain and protect the integrity of his position as [Job title 1] to [Job title 2] and that future incidents will ‘trigger automatic arrest and charges’.

    vi.Letter from [rank deleted] of Police:

    a.    The letter dated [November] 2018 is signed by ‘Mr FT’, [rank deleted] of Police, and states that he has been requested by the first applicant to confirm the abuse she has experienced from her husband.

    b.    While he was the [rank deleted] of the [Police], there were a few incidents of serious assault by her husband which his officers attended. He refers to one incident where the assault ‘occurred occasionally [sic] “Grievous Bodily Harm” and her husband was called into the [Suburb 3] Police Station, cautioned and released pending further investigations’. He is not aware of the current status of this case.

    c.     Her husband has been warned on ‘numerous occasions and will be arrested and charged should he interfere’ with the first applicant and her children. He was told ‘at the time of interview’ that an application was made at the Family Court for a Preventative Order against her husband.

    vii.Letter from [Accommodation]:

    a.    The letter dated [January] 2018 is signed by the Branch Manager of [Accommodation], Port Moresby and states that the first applicant ‘is a tenant and has been a tenant for the last ten (10) years’.

    b.    She was abandoned by her husband with her children and he allowed her to do small scale marketing within the yard to sustain herself and her children and to pay the rent.’

    c.     Her husband was very abusive and ‘has been barred from the accommodation area’.

    d.    He also provides accommodation for a few other women and children abused by their husbands who are awaiting appropriate action from the welfare office and courts.

    viii.Letter from [Occupation 1 authority]: the letter is dated 6 June 2016 and addressed to the first applicant ‘c/- [Accommodation]’. It states that the first applicant failed to resume [occupation 1] duties at [a specified time] and due to the period of absence she is deemed to have resigned effective from 28 January 2013.

    Protection visa interview and delegate’s decision

13. The first applicant attended an interview with the delegate on 8 July 2019. Relevant evidence provided at the interview, as summarised in the refusal decision, is outlined below:

    i.She is unsure of when she married [Mr B] but thinks it was either 2002 or 2003. They were not legally married; he already had a ‘legal’ wife together with several other ‘wives’. They lived together for several years and in around 2008 they both ‘married’ other people.

    ii.Her second ‘husband’ was violent toward her. After about 6 months of ‘marriage’ to her second husband, she moved into accommodation at [Accommodation] (in 2009) which provides accommodation to women who have suffered domestic violence and allows them to sell goods on the premises. [Mr B] then ‘dragged her back’ to him, although they lived separately; she resided at [Accommodation] while [Mr B] resided at [another location] in Port Moresby with his ‘wife’.

    iii.Regarding the incident in August 2017 during which she was assaulted by the police, the first applicant explained that she was violent toward her husband because she was jealous of his other wives, and he was violent in return. She stated that she was formally charged and fined at the police station and released upon payment of the fines.

    iv.The delegate discussed with the first applicant documentation provided to the Department in support of her 2015 and 2016 offshore visitor visa applications which included confirmation of employment letters with [a] business owned by [Mr B]. These letters stated that she had been employed with this business for 2 years and 4 years respectively. She confirmed to the delegate that she had completed the applications herself but denied that she had ever been employed with this business.

    v.The delegate discussed with the first applicant that, according to Departmental records, between 2015 and 2018 she had travelled to Australia on 12 occasions with her husband. She responded that her husband was receiving treatment in Australia for [cancer], and she had accompanied him and helped to care for him. 

    vi.Regarding her final departure from PNG in September 2018, she claimed that she had been planning for several years to leave her husband and come to Australia to seek protection. She withdrew her superannuation funds; obtained passports and visas for the children without her husband’s knowledge; and did not tell her husband that she was coming to Australia. She thinks her husband learnt that she was in Australia via her cousin, Mr P. The delegate raised with her that Departmental records indicate that her husband provided permission and supporting documentation for the children’s visa applications and her husband travelled to Australia on the same flight as her and her son. She responded that she had to ask her husband for these documents so that she could stay in Australia and apply for protection. She maintained that she travelled separately from her husband.

    vii.Regarding contact with her ex-husband since her final arrival in Australia, the first applicant stated that she has had no contact with him, other than seeing him when the [Job title 2]’s wife passed away in Australia in December 2018. When questioned about any contact between her children and their father, she stated that her son in particular misses his father and she has brought the children to see their father in Brisbane city on 4 or 5 occasions since her last arrival in Australia.

14. The delegate found the first applicant’s account to be substantially lacking in credibility and, aside from the letter from the [Occupation 1 authority], gave no or little weight to the supporting documents provided. The delegate considered the applicant’s failure to apply for protection during her previous travel to Australia on 15 occasions between 2015 and September 2018, which included several trips without her husband, to undermine her claims to fear harm from her ex-husband. The delegate did not accept that the first applicant had experienced domestic violence from [Mr B] and rejected her claims in their entirety.

    Evidence before the Tribunal

    Pre-hearing evidence

15. Prior to the Tribunal hearing, the applicants submitted country information regarding violence against women in PNG, photos depicting injuries and scars sustained by the first applicant, and a 3-page written submission from the applicant’s representative dated 20 April 2024, together with the following supporting documents:

    Statutory declaration of first applicant dated 24 April 2024

1. A summary of relevant evidence from this document is below:

   i.She met [Mr B] in 2003 while living with her cousin’s sister in [Suburb 1], Port Moresby. She fell pregnant in 2004 and they lived together for a short time, before she moved back to her cousin’s sister’s house.

   ii.They had problems from the beginning of their relationship because he already had many women and children in his life and gambled and drank a lot. His formal wife [would] regularly fly to Port Moresby from ‘the village’. Another wife [who] was living with [Mr B] prior to her, would often fight with the first applicant. At the time she customarily ‘married’ [Mr B], he had 4 children with different women. He paid a bride price when they married, meaning that she is his property. 

   iii.Following [deleted] in January 2005, [Mr B] came to her cousin’s sister’s house where she was staying, and they had a big argument. He burnt all her clothes and her daughter’s baby clothes. He threw a stone at her which caused an injury to her finger.

   iv.She tried to raise her daughter alone but struggled financially and she had no choice but to return to [Mr B]. The fighting between them continued because of his constant drinking, gambling and womanising. She suffered several miscarriages. Several of their fights ended up at the police station. When [Mr B] told them he was a former police officer, the police told them to go home because it is a family problem. Most of the fights were resolved by payment of compensation by [Mr B].

   v.She has scars all over her body from the beatings she received from [Mr B]. She sustained broken lips, broken nose, broken ear drums, smashed fingers, broken teeth and [scars]. At times she ended up at the hospital due to the injuries she sustained. Her children grew up in a violent home. She tried several times to run away but he always found her by using the police and military and threatening her family.   

   vi.In around 2010, [Mr B] married another woman, ‘[Ms F]’. She tried to move on with her new boyfriend, who was also [an occupation 1], but [Mr B] came with the police and got her away from him. He brutally bashed her; she was almost killed.

   vii.Following this, she moved to the [Accommodation] compound and lived under their protection for almost 10 years. She was allowed to sell [products] at the market in [Accommodation] because her husband would not allow her to work as [an occupation 1]. She was ‘forced to become pregnant’ to [Mr B] to make up for her mistake and gain financial favour from him. Her son was born in [Year] and her younger daughter in [Year]. Because of her financial difficulties, she gave her younger daughter to her older sister to raise.

   viii.In early 2015, [Mr B] was diagnosed with [cancer]. Despite all their differences, she was at his ‘sick bedside’. Between 2015 and 2017, they travelled to Australia for his medical treatment. However, in return for all her support, he arranged for the police to assault her [in] August 2017. After that incident, she decided to run away from him.

   ix.By running away to Australia, she has ‘doubled his anger’ toward her and with his power and influence there is no question that he can destroy or kill her.

   x.She has moved on from him in Australia; she has gained new qualifications and work experience and has been in a de facto relationship with a new partner for 4 years.  

   Statutory declaration of Ms M

2. In a statutory declaration dated 4 April 2024, Ms M, an Australian permanent resident, states that she has known the first applicant since she was young. They lived on the same street in [Suburb 1] in Port Moresby.

3. She recalls an incident in mid-2005 when the first applicant was compensated by her child’s father for burning all of her daughter’s baby clothes. She saw the first applicant with a bandaged hand.

4. She also recalls an incident in 2008 when she saw the first applicant running out of her house screaming with blood dripping down her head and face. Her ‘husband’ ran after her and beat her until some neighbours intervened. The first applicant and ‘her husband’ were talked about as a ‘fighting couple’ in the neighbourhood.

   Statutory declaration of [Ms A]

5. In a statutory declaration dated 5 April 2024, the first applicant’s older daughter recalls the event that occurred in August 2017 outside the [Accommodation] compound when her mother was assaulted by the police. She saw her father standing to the side, watching the incident.

   Statutory declaration of Ms T

6. In a statutory declaration dated 28 April 2024, Ms T states that she has known [Mr B] since she married his cousin brother. He is known for marrying many women and abusing them. He has many kids from different women. Due to ‘womenizing and neglect and abuse’ most of them go away. If they seek help from the police, he shuts them up by beating them.

7. The first applicant is one of [Mr B]’s wives. Before she came to Australia in 2013, Ms T heard that the first applicant moved away from [Mr B] and lived with her children at [Suburb 2] (Port Moresby) because of his abuse and neglect. 

   Oral evidence at hearing

8. Regarding her family in PNG, the first applicant stated that her mother continues to reside in [Village 1] in Enga province. Her father passed away in around 2009. She has [siblings]: [sisters] and 1 brother. Her brother lives in [Village 2], Enga province and is a subsistence farmer. [Some] of her sisters live in [Village 1] and another sister lives in Port Moresby. Asked about any other family members in Port Moresby, she referred to a ‘cousin brother’.

9. She confirmed that she has been in a de-facto relationship in Australia for about 4 years. He is also from PNG and is an Australian permanent resident. Her ex-husband, [Mr B], is aware of her new relationship. Asked about his reaction, she responded that she doesn’t know what his true thoughts are. They do not communicate often. The last contact they had was when [Mr B] came to Brisbane for work in around March or April 2024. She took her son to see his father.

10. She confirmed that her relationship with [Mr B] commenced in around 2003. I discussed with the first applicant that she has provided different dates regarding when they first separated (2006, 2008 and 2010). Asked to confirm the approximate date, she initially stated 2010 when he married ‘[Ms F]’, but then confirmed that it was prior to her moving to [Accommodation] in around 2008.

11. Asked about her second ‘marriage’ in PNG, she confirmed that this refers to her relationship with [Mr K]. They met in 2008 while working together [at] a [workplace] in [Suburb 1]. She confirmed that this was before she moved to [Accommodation]. They lived together for about 6 months at [Suburb 1] but were not legally married. Asked why her relationship with [Mr K] ended, she stated that [Mr B] started coming around with police and soldiers and harassing them. Asked whether [Mr K] was violent toward her, she stated that at times he was. She referred to an incident where she had a big fight with [Mr B] and he burnt all her clothes. That same night, [Mr K] also beat her and she suffered a miscarriage.

12. She moved to [Accommodation] after the relationship with [Mr K] ended. The relationship ‘did not end well’ and she moved to [Accommodation] for her safety. Asked about her contact with [Mr K] after their relationship ceased, she stated that he ‘always comes around’. She clarified that he was not allowed inside the [Accommodation] compound, which had 24-hour security, but would drive past the property and come to the fence.

13. Asked when the relationship with [Mr B] resumed, she indicated that it was sometime after they moved to [Accommodation]. He did not live with them but visited them sometimes. He paid compensation to her family for his actions and her mother told her that she should stay with him for her daughter’s sake.

14. I discussed with the first applicant that the letter from [Accommodation] refers to her ‘husband’ being barred from entering the [Accommodation] premises. She responded that this refers to [Mr B]. When raised with the first applicant that she had earlier said that [Mr B] visited them at [Accommodation], she stated that after a few years when ‘tensions had died down’ he could visit them sometimes; she had no choice but to allow him to visit because of her financial situation. When discussing that the applicant had 2 children with [Mr B] during the period she lived at [Accommodation], she responded that she would meet him outside [Accommodation] at times and that he was sometimes able to enter the [Accommodation] premises by bribing the security guards. The owner of the property was not always around to protect them.

15. Regarding the Welfare Services letter, she was asked when she first engaged with this organisation. She stated that she first registered with them in 2015 or 2016. Asked what prompted her to engage with them at that time, she stated that she needed financial help and they tried to get [Mr B] to come in for counselling, but he ignored them. When asked how she obtained this letter given it is dated several months after her last arrival in Australia, she stated that a family member delivered it to her.

16. Regarding the letter from Mr FT, the first applicant was asked how she obtained this letter. She stated that she knows Mr FT personally as he is also from Enga province and went to school with some of her relatives. She asked him to write the letter. When noted that it was dated after her last arrival in Australia, she stated that one of her family members delivered the letter to her in Australia. Asked why Mr FT would write the letter if he was implicated in a police assault against her, she reiterated that she has a personal connection to him. 

17. Regarding the [support service] letter which states that she sought assistance from them about 12 days before her final departure from PNG, she confirmed this was the first time she sought help from them. The [support service] was located near the ENT clinic at [Hospital 1], where she was receiving [treatment], and they advised her to go there. Asked what assistance they provided to her, she stated that they spoke to her about domestic violence and gave her advice. She attended 2 or 3 times before leaving PNG.

18. She confirmed that she went to the police many times but they never provided her with any assistance. She also confirmed that she had not initiated any legal proceedings in the courts.

19. I discussed with the first applicant that, as did the delegate, I have concerns regarding her extensive travel history to Australia of 16 trips between 2015 and 2018, many with [Mr B] and some by herself. I may have concerns that this is not reflective of a person who is in an abusive or controlling relationship and experiencing significant financial hardship. She responded that she did not travel by herself; she only accompanied [Mr B] during his medical treatment. When it was noted that some of her travel to Australia took place after her husband had finished his medical treatment, she responded that those trips were to look after the [Job title 2]’s late wife in Australia who was sick. She advised that [Mr B] arranged her visitor visa applications in 2015 and 2016 so that she could accompany him to Australia.

20. I discussed with the first applicant that her husband’s support for her children’s visa applications and travel to Australia in late 2018 to join her also appears inconsistent with her claims that [Mr B] was abusive. She responded that she could not tell people what was really happening. She used [Mr B] in order to get herself and her children to Australia. Asked about his understanding of why the children were travelling to Australia, she stated that he believed they were coming over for a holiday to see her while she was caring for the [Job title 2]’s late wife.

21. I discussed with the first applicant that she had travelled to Australia many times prior to her final arrival in late September 2018, including without her husband. Asked why she had not applied for protection during any of those trips, she stated that she had to wait until [Mr B] brought her children over to Australia.

22. I discussed with the first applicant that her older daughter has provided evidence in support of her protection visa application regarding the period of her relationship with [Mr K]. Her daughter’s evidence indicates that the relationship with [Mr K] took place between 2011 or 2012 and 2017, while they lived at [Accommodation], which is inconsistent with her own evidence. The first applicant responded that she only saw [Mr K] when he came outside the fence of the [Accommodation] compound. She thinks her daughter has mistaken the dates because she was very young at the time.

23. I discussed with the first applicant that her older daughter has also provided evidence in support of her protection visa application regarding visits to the house at [Accommodation] by her father, [Mr B]. Her daughter’s evidence indicates that there were periods where her father visited the house often and refers to several incidents of abuse by her father which occurred in the house at [Accommodation]. This appears inconsistent with her own evidence that there were periods where [Mr B] was not permitted within the premises. It also appears inconsistent with the letter from [Accommodation], indicating that her husband was barred from the premises. The first applicant reiterated that her daughter was young at the time and may be confused as to the frequency of her father’s visits.  

24. Asked why she remained at [Accommodation] if [Mr B] was able to access the property, she stated that she had nowhere else to go and felt safer there because of the protection afforded by the manager who was generally feared within the local community.

25. Asked about ongoing contact with [Mr B], she advised that she continues to take the children, particularly her son, to see their father when he visits Australia. The children speak with him on the phone, and she has some contact with him via a messaging application. She confirmed that he provides financial assistance to her in Australia to pay for rent, bills and the children’s school fees.

26. I discussed with the first applicant that an allegation had been received by the Department regarding her protection visa claims. I explained that this information is subject to a non-disclosure certificate issued by the Department under s 438 of the Act and provided a copy of the certificate to the applicant’s representative for comment. I outlined the gist of the allegation (as detailed below) and confirmed that details of this information, together with any other relevant information for the purposes of s 424A of the Act, would be provided to the applicant in writing following the hearing. I emphasised that I have not made my mind up about the allegation and may not give it significant weight. She responded that some people form an impression of her based on their knowledge of her husband and some people make false assertions because of jealousy. They do not know what she has experienced.

    Post-hearing evidence

27. On 2 May 2024 the Tribunal wrote to the applicants under s 424A of the Act raising information that may form the reason, or part of the reason, for affirming the decision under review. They were advised of the relevance of this information to the review and invited to give comments on or respond to this information in writing by 16 May 2024. A summary of the information is below:

    Allegation or ‘dob-in’

28. On 26 July 2020, the Department received correspondence alleging (in general terms) that:

    i.She has made false claims in support of her protection visa application. Her husband, [Mr B], was never violent toward her.

    ii.[Mr B] has supported her and her children to apply for protection to enable them to remain in Australia.

    iii.[Mr B] provides financial support to her and her children, including for legal costs and private school fees, and visits them regularly.

    iv.The documents she has provided in support of her application are not genuine.  

29. The applicants were informed that this information is relevant to the review because it may be relied on in assessing the credibility of the first applicant’s claims regarding harm experienced in PNG from [Mr B].

    Evidence from [Ms A]’s protection visa application: [Mr K]

30. In statutory declarations submitted in support of her application, [Ms A] stated that her mother had a boyfriend called ‘[Mr K]’ who visited the house at [Accommodation] between approximately 2011 or 2012 and 2017. The first time she recalls meeting [Mr K] was in the living room of the house at [Accommodation] in 2011 or 2012. The last time she recalls seeing [Mr K] was at the house at [Accommodation] in 2017. Between these periods, she recalls several incidents where [Mr K] was abusive toward her in the house at [Accommodation].

31. In a statutory declaration dated 13 July 2022, [Ms A] addresses adverse information raised by the Department regarding an adoption order issued by the PNG Family Court [in] November 2017. This document was provided in support of her protection visa application and in support of her child visa application lodged with the Department in June 2018. The child visa application stated that the reason for the adoption was because her stepfather at the time was neglecting and abusing her. In the statutory declaration of 13 July 2022, she confirms that the ‘stepfather’ referred to in her child visa application is [Mr K].

32. In the first applicant’s statutory declaration dated 13 July 2022, which was submitted in support of [Ms A]’s application, she stated that in around April 2022 she spoke to her daughter about the abuse by [Mr K], as follows: ‘I informed her that [Mr K] had abused her and her cousins as well. She was not aware of this. I also informed her that her little sister was living with relatives at the time we were with [Mr K] and that is why she stayed safe from his abuse.’

33. The applicants were advised that this information is relevant to the review because it is inconsistent with the first applicant’s oral evidence to the Tribunal that she was in a relationship with [Mr K] for approximately 6 months in 2008, during which time they lived together at [Suburb 1]. The relationship had ceased at the time she moved to [Accommodation] and [Mr K] was not permitted to enter the premises of [Accommodation]. It was noted that her younger daughter, as referred to in her statutory declaration, was born in March 2013. These inconsistencies may be relied on in assessing the credibility of her claimed experiences in PNG between 2008 and 2018, including in regard to her relationship with [Mr K] and harm from [Mr B].

    Evidence from [Ms A]’s application: [Mr B]

34. In statutory declarations submitted in support of her application, [Ms A] stated that her father, [Mr B], visited the house at [Accommodation] and recounts several abusive incidents that occurred in the house at [Accommodation].

35. The applicants were advised that this information is relevant to the review because it is inconsistent with the first applicant’s oral evidence to the Tribunal that there were periods where [Mr B] was not permitted to enter the premises of [Accommodation]. It is also inconsistent with the letter from [Accommodation] which states that ‘the husband was very abusive and has been barred from the accommodation area’. She confirmed at her Tribunal hearing that the reference to ‘husband’ in this letter is to [Mr B]. These inconsistencies may be relied on in assessing the credibility of her claimed experiences in Port Moresby between 2008 and 2018, including in regard to harm from [Mr B].

    Movement records

36. According to movement records held by the Department for the first applicant and [Mr B], she travelled to Australia on 15 occasions before her final arrival [in] September 2018, with several of those arrivals and/or departures being the same as those of [Mr B] (as highlighted in italics below):

    i.Arrived [July] 2015; departed [August] 2015

    ii.Arrived [August] 2015; departed [September] 2015

    iii.Arrived [September] 2015; departed [October] 2015

    iv.Arrived [October] 2015; departed [October] 2015

    v.Arrived [November] 2015; departed [November] 2015

    vi.Arrived [December] 2015; departed [December] 2015

    vii.Arrived [January 2016]; departed [January] 2016

    viii.Arrived [February] 2016; departed [March] 2016

    ix.Arrived [January] 2017; departed [February] 2017

    x.Arrived [July] 2017; departed [July] 2017

    xi.Arrived [July] 2017; departed [August] 2017

    xii.Arrived [October] 2017; departed [October] 2017

    xiii.Arrived [March] 2018; departed [April] 2018

    xiv.Arrived [April] 2018; departed [June] 2018

    xv.Arrived [July] 2018; departed [September] 2018

    xvi.Arrived [September] 2018

1. The applicants were advised that this information is relevant to the review because it may be relied on in assessing the credibility of the first applicant’s claims to have experienced harm from [Mr B] and to have held a genuine fear of harm from [Mr B] during this period.

2. In response to the s 424A letter, a statutory declaration by the first applicant dated 16 May 2024 was provided. A summary of relevant evidence from that declaration is below:

   i.While she cannot recall the exact dates of her travel to Australia, she remembers that between June 2015 and June 2018 she accompanied [Mr B] to Australia for his medical treatment. Following her last arrival in late September 2018, she asked [Mr B] to bring her children to Australia and he did not object. He was not aware that she had planned her escape and would not be returning to PNG.

   ii.She had ‘encounters’ with [Mr K] mostly between 2008 and 2009 and partly in 2010, when her older daughter was 3 to 5 years old. Her daughter stayed home with [Mr K] while she went to work. After many fights and arguments, they parted ways in 2010 and she has had no contact with him since then.

   iii.[Mr B] was diagnosed with [cancer] in 2015 and had an operation in 2016. She spent a lot of time during this period caring for him. Her children were left in the care of different people during this time. Her older daughter was very young and may not correctly recall events from that time. Her older daughter prepared her protection visa application separately and has not shared details of her application with the first applicant. It is possible that she has been mistaken with her past experiences and dates.  

   iv.[Mr B] did not live with them at [Accommodation]; he was ‘strictly banned’ from entering the compound. However, over time he bribed the security guards and would ‘come around randomly’. She had no choice but to go with him when he wanted her to. Her older daughter was less than 12 years old while living at [Accommodation] and was likely to have been confused about how often her father visited. It would not be fair to rely on the recollections of a child who has experienced traumatic events.   

   Findings and assessment

   Factual findings

3. In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[1] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]

   [1] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015

   [2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

   [3] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.

4. I have also had regard to the Tribunal’s Guidelines on Vulnerable Persons which define a vulnerable person as a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed, with relevant factors including a person’s experiences of physical or psychological abuse and trauma, such as victims of physical or sexual violence.

5. In assessing the credibility of the first applicant’s claims, I have taken into account that some of these events occurred many years ago and relate to traumatic experiences involving family and sexual violence. I acknowledge that these factors may impact on her capacity to provide evidence, particularly regarding dates and timeframes, and the overall consistency of her account. However, as discussed below, I have significant concerns regarding the applicant’s claims to have been subjected to domestic violence from [Mr B] for over 15 years.

   Domestic violence claims

6. The applicant claims that she experienced significant and ongoing physical and verbal abuse from [Mr B] since their relationship commenced in around 2003. She claims that they separated in around 2008 and she entered into a relationship with [Mr K] who was also abusive. I accept that she was in an abusive relationship with [Mr K] from around 2008. This is generally consistent with evidence provided by her older daughter in respect of her application and accords with a range of credible country information.

7. Sources indicate that PNG has amongst the highest rates of gender-based violence in the world.[4] Sources report that almost all women and girls in PNG will be subject to violence at some point during their lives. The most recent PNG Demographic Health Survey (2016-18) found that 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15. It has been reported that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of gender-based violence every year.[5] According to a 2023 Parliamentary Committee Inquiry on Gender Equality, gender-based violence is increasingly exponentially.[6] DFAT 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.[7]

   [4] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022; US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023;

   [5] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022

   [6] Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment, Inquiry into gender equality policies and institutions, gender-based violence and sorcery accusation related violence, October 2023, p.13  

   [7] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022

8. According to a report by the US Department of State, gender-based violence, including sexual violence, gang rape, and intimate-partner violence, was a serious and widespread problem. Approximately two-thirds of women have reportedly been beaten by their partners. Although the law also criminalizes family violence and imposes maximum penalties of two years’ imprisonment and monetary fines, it was seldom enforced. While the law also criminalizes intimate-partner violence, it nonetheless persisted throughout the country and was generally committed with impunity.[8]

   [8] US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023

9. There are however significant discrepancies regarding the period of her relationship with [Mr K]. According to the first applicant’s evidence to the Tribunal, her relationship with [Mr K] had ceased by 2010 and he was not permitted to enter the premises at [Accommodation]. However, she has also provided inconsistent evidence in her statutory declaration dated 13 July 2022 (provided in support of her daughter’s application) which indicates that she remained in a relationship with [Mr K] after the birth of her younger daughter in 2013. The information in her older daughter’s child visa application also indicates that the relationship with [Mr K] continued beyond 2010, claiming that the reason for her older daughter’s adoption to Mr P and Mrs P in 2018 was abuse from [Mr K].

10. The first applicant claims that she resided at [Accommodation] for almost 10 years to obtain some degree of protection from [Mr B]. Based on the available evidence, I accept that the applicant resided at [Accommodation] from around 2008 until her final departure for Australia in September 2018. This is supported by the letter from [Accommodation] and evidence from her older daughter. It is also supported by the letter from the [Occupation 1 authority] which is addressed to the first applicant ‘C/- [Accommodation]’ at a PO Box address in Port Moresby. There is nothing before me to indicate that this letter is not genuine, and I note that the delegate did not express any concerns regarding its authenticity. I have given this letter significant weight in accepting the claimed residence at [Accommodation].

11. I find that this in turn supports the claim that the first applicant experienced domestic violence in PNG. As stated in the letter from [Accommodation], they provide accommodation for women and children experiencing domestic violence. In the refusal decision, the delegate states that while she has no ‘tangible evidence’ of such, she is aware that the owners of [Accommodation] in Port Moresby provide accommodation to women fleeing domestic violence and allow them to conduct a small market in the compound selling basic goods and cooked food. While I have been unable to locate any independent sources confirming this, there is no information before me to indicate it is not credible.

12. The first applicant claims that [Mr B] was prevented from entering the [Accommodation] premises due to his abusive behaviour. However, considering my findings below regarding [Mr B], I do not accept that she moved to [Accommodation] because of abuse from [Mr B], nor that [Mr B] was barred from the accommodation area of [Accommodation] because he was abusive. Based on the available evidence, I find that she moved to [Accommodation] because of domestic violence from [Mr K] and the reference in the [Accommodation] letter to her ‘husband’ being barred from the accommodation area relates to [Mr K]. This is consistent with her evidence that prior to moving to [Accommodation] she lived with [Mr K] at [Suburb 1], that he was abusive toward her, and that the relationship did not end well.

13. While there is inconsistent evidence as to when the relationship with [Mr K] ended, I consider it plausible that it continued to some extent during the period in which the first applicant resided at [Accommodation].

14. Regarding her relationship with [Mr B], I accept that they commenced a relationship in around 2003; separated prior to 2008 and resumed a relationship at some point after her move to [Accommodation], with their 2 younger children being born in [Year] and [Year]. I accept that [Mr B] has several other wives with whom he has children. This has been consistently claimed by both the first applicant and her older daughter. Polygamy is reported to be common in PNG. According to 2016 data, 19 per cent of PNG’s married women – almost one in five – live in polygamous marriages. While polygamy used to be concentrated in the Highlands, in rural areas, and among older and uneducated women, it has become more widespread and evenly distributed throughout all regions of the country, including urban areas.[9]

    [9] Development Policy Centre, Mambon K and Howes S, Polygamy is spreading in PNG, 6 February 2024

15. I accept that there was some volatility in the relationship between the first applicant and [Mr B], to some degree was caused by his polygamy. In a patriarchal society such as PNG with inequitable gender norms,[10] I accept as credible that the applicant was subjected to some instances of unfair treatment by [Mr B]. I accept the claim relating to an incident in 2005 at [Suburb 1] when [Mr B] burnt her daughter’s baby clothes and subsequently paid compensation. This is supported by Ms M’s statutory declaration and evidence provided by her daughter in support of her protection visa application.

    [10] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022

16. However, for the reasons below I find that the first applicant has significantly embellished her claims regarding [Mr B]’s behaviour. I do not accept that he was physically or verbally abusive toward her over a 15-year period in PNG as claimed. As raised with the first applicant for comment, I consider the available evidence regarding [Mr B]’s conduct toward her and her children to not be reflective of an abusive and controlling husband. I have given weight to the following:

    i.Between July 2015 and [September] 2018, she travelled to Australia on 16 occasions, both with and without her husband. Her visitor visa applications were supported and made on her behalf by her husband. On her final arrival to Australia [in] September 2018, she was accompanied by her husband and son.  

    ii.[Mr B] supported the visitor visa applications in 2018 for her younger children; he returned to PNG to bring her younger daughter to Australia [in] November 2018 and delivered her to the first applicant’s residence in Brisbane following their arrival.   

    iii.The first applicant did not apply for protection during any of her 15 previous trips to Australia before her final arrival in September 2018.

    iv.[Mr B] has been providing financial support to her in Australia to help pay for rent, bills and the children’s school fees.

17. I have considered the first applicant’s responses to this information, both orally at her Tribunal hearing and in her post-hearing written response. I accept that she would want her children to be with her in Australia and required her husband’s assistance for their travel to Australia. However, I do not find her explanation that she could not apply for protection earlier because she had to use her husband to get her children to Australia. Her older daughter was residing in Australia since March 2018, after her father supported her to live with Mr P and Ms P and apply for a child visa. The evidence indicates that her husband was very cooperative in arranging for the younger children’s travel to Australia in late 2018. There seems to be no apparent reason why she could not have sought his assistance for the children to travel to Australia prior to late 2018 so that she could apply for protection earlier. She claims that, following the incident in August 2017, she decided to leave her husband and apply for protection. However, she travelled to Australia on 4 occasions following that incident – with 3 of those trips being without her husband – without applying for protection.

18. I have considered the supporting documentary evidence provided by the first applicant, as detailed above. Regarding the photos of scars and injuries sustained by the applicant, I do not accept that these support the claimed abuse by [Mr B]. I find that these injuries could have been caused from the domestic violence she experienced from [Mr K] or due to other events. I have not given them any weight.

19. I have considered the statements in Ms M’s statutory declaration relating to an incident of violence by the first applicant’s ‘husband’ in 2008 in [Suburb 1]. The first applicant’s evidence is that during this period she was living with [Mr K] and he was abusive. In her oral evidence to the Tribunal, she referred to an incident which occurred during their relationship in which [Mr K] beat her and she suffered a miscarriage. I find that the reference in Ms M’s statement to the first applicant’s ‘husband’ at that time is to [Mr K], rather than [Mr B].

20. I have considered the statements in Ms T’s statutory declaration regarding [Mr B]’s conduct, which I acknowledge generally accord with the first applicant’s claims. I have accepted the claims that [Mr B] has multiple wives and children and acknowledge they may have experienced conduct of the nature claimed by Ms T. However, considering the available evidence relating to [Mr B]’s treatment of the first applicant and her children, I do not find this to outweigh my credibility concerns and have given these statements no weight.  

21. I have considered the letter from Mr FT regarding [Mr B]’s abuse of the first applicant. I find this letter to contain evidence inconsistent with that provided by the first applicant. It states that his police officers attended some incidents of serious assault perpetrated by [Mr B]; that [Mr B] was called into the [Suburb 3] police station, cautioned and released pending further investigations; and that he has been warned by police on numerous occasions that he will be arrested and charged in relation to future abuse. However, the first applicant has consistently claimed that [Mr B] was never subject to any action by the police, despite her repeated complaints, because of his previous role as a police officer and his current position of influence with the [Job title 2]’s office. The letter also refers to an application for a ‘preventative order’ having been made with the Family Court in respect of [Mr B]. However, the first applicant confirmed to the Tribunal that she had not sought any orders from the courts. I have given this document no weight.

22. I have considered the [support service] letter, which is dated 6 days prior to the first applicant’s final departure from PNG. The letter states that the first applicant sought assistance from the [support service] on 18 September 2018 and she confirmed to the Tribunal that this was the first time that she had engaged with this service. She explained that she was referred to the [support service] at that time by the ENT clinic which is in close proximity. However, the ENT letter and an ENT clinic attendance slip indicates that she attended the ENT clinic on 29 August 2017 and 9 November 2017, almost one year prior to her first attendance at the [support service]. I also have concerns that the letter refers to the first applicant completing a trauma counselling program, whereas her evidence to the Tribunal was that she attended the [support service] a few times, during which they spoke to her about domestic violence and gave her some advice. I have given this document no weight.

23. Regarding the Welfare Services letter, the first applicant stated to the Tribunal that she first engaged with this service in 2015 or 2016. This appears inconsistent with the statement in the letter that she has been a client of the service since ‘she became a victim of some of the most horrendous abuses inflicted on her by her husband’. The applicant confirmed to the Tribunal that in 2015 and 2016 [Mr B] supported her visitor visa applications enabling her to travel to Australia and between July 2015 and March 2016 she travelled to Australia on 8 occasions, with many of her arrivals and/or departures being with her husband. I have given no weight to this document.  

24. I have considered the applicant’s claims regarding the incident [in] August 2017. I accept that the applicant was subjected to an assault by police in August 2017 as a result of being falsely accused of driving a stolen car. Despite it referring to the incident occurring at [Suburb 1] (rather than [Suburb 2] as claimed by the first applicant) I find the ENT letter to generally support this claim. However, I do not accept that this incident was orchestrated by [Mr B]. The first applicant has provided no convincing explanation of why [Mr B] would go to the effort of making a false accusation to the police and/or order the police to assault her, shortly after his recovery from [cancer] and given her significant efforts in caring for him during his illness. I acknowledge that the first applicant’s older daughter has provided evidence in support of this claim, including in a statutory declaration dated 5 April 2024. I am prepared to accept that [Mr B] was in the vicinity of the incident and did not intervene. However, I am not satisfied that this supports the claim that he was responsible for the assault by bringing false accusations against the first applicant or ordering the police to assault her.

25. I also have concerns with the letter from [Officer] JM regarding this incident. Aside from it incorrectly referencing the date of the incident (2018 rather than 2017), it is inconsistent with the first applicant’s own evidence. She stated that she was charged with several offences and fined, whereas the letter states that she was released without any charge. The letter refers to [Mr B] being called into the police station and cautioned for making false allegations and beating his wife and that he was given a final warning, with any future incidents triggering automatic arrest and charges. However, the first applicant has consistently claimed that [Mr B] was never subject to any action by the police, despite her repeated complaints, because of his previous role as a police officer and his current position of influence with the [Job title 2]’s office. I have given this document no weight.

1. Regarding the allegation received by the Department in July 2020, I have given no weight to the claims that [Mr B] was never violent toward the first applicant or that she has provided non-genuine documents in support of her application. There is no information before me as to how the author is aware of this information or the basis for these assertions. The other assertions are generally consistent with evidence provided by the first applicant, namely that [Mr B] provides her with financial assistance, and she has contact with him in Australia for the purpose of him visiting his children. 

   Family support in PNG

2. I accept that the first applicant is separated from [Mr B] and is in a de facto relationship with an Australian permanent resident. I accept that [Mr B] is aware of her new relationship. I accept that [Mr B] resides in Port Moresby and holds a [position] with [Employer] as [Job title 1] to [Job title 2]. According to travel records for [Mr B] held by the Department, he travels frequently to Australia, including as part of his [role] with [Employer].

3. I accept that the first applicant has one sister and a male cousin in Port Moresby and that her mother, [sisters] and one brother reside in Enga Province.

   Refugee criterion assessment

4. Based on the first applicant’s circumstances, I find that if she were to return to PNG, she is likely to return to Port Moresby, being her place of residence since 2003. While I have accepted that the first applicant experienced abuse from [Mr K] during their relationship, I am not satisfied that there is a real chance that she would be harmed by him if she were to return to Port Moresby. That relationship has ceased and, according to the first applicant, there has been no contact with him since 2010. I find the chance that she would be harmed by [Mr K] in the reasonably foreseeable future to be remote.

5. Considering my findings above that the first applicant was not previously abused by [Mr B], I find there to be no real chance of abuse from him if she were to return to Port Moresby. Given my findings above, I do not accept that her departure from PNG or her new relationship would result in a real chance of harm from [Mr B] if she were to return to Port Moresby. As discussed above, [Mr B] is aware of these circumstances and continues to support her and their children financially.   

6. I accept that the first applicant would be returning to Port Moresby as a single woman with no, or very limited, male support or protection. I have accepted that she is separated from [Mr B] and would not be returning with her new partner who has permanent residency in Australia. While [Mr B] resides in Port Moresby, he has several other wives and children, and travels frequently for work. While he provides financial support to her in Australia, I accept that it does not necessarily follow that he would provide housing and financial support to her if she were to return to Port Moresby. The applicant previously resided for approximately 10 years at [Accommodation]. I accept that she is unlikely to be able to return to that accommodation. In her particular circumstances, I am not satisfied that the presence of [Mr B] or a male cousin in Port Moresby could offer her meaningful protection from gender-based violence if she were to return to Port Moresby as a single woman.

7. Based on the available evidence, I accept that the first applicant has no other male support or protection in Port Moresby. DFAT reports that women in PNG are traditionally dependent on a male partner or guardian for their economic and physical security.[11] Considering the above, I find that there is a real chance, being a possibility that is not remote or far-fetched,[12] that the first applicant would be subjected to harm in the reasonably foreseeable future as a single female without male protection if she were to return to Port Moresby.

   [11] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 24  

   [12] Chan Yee Kin v MIEA [1989] HCA 62

8. I have therefore considered whether the real chance of harm relates to all areas of PNG. The country information discussed above refers to gender-based violence being prevalent throughout PNG. I have accepted that the first applicant has some relatives, including a brother, in Enga Province. However, I am not satisfied they could offer her meaningful protection from gender-based violence as a single female in Enga Province. The country information discussed above indicates that women living in Highlands provinces are at particular risk of gender-based violence. The first applicant has no male relatives or male protection in other areas of PNG. I find there is a real chance that the first applicant would experience gender-based violence as a single woman if she were to move to another part of PNG. I find that the real chance of harm relates to all areas of PNG.

9. I find that the first applicant fears persecution for reasons of her membership of a particular social group which may be described as ‘single women in PNG’ or ‘single women without male protection in PNG’. I find these groups to satisfy the definition in s 5L of the Act as the characteristics of gender and/or relationship status are shared by each member of the group, including the first applicant; are not a fear of persecution; and are innate or immutable or distinguish the group from society. I find this to be the essential and significant reason for the persecution, as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group and is non-random. I find the persecution to involve serious harm, as required by
   s 5J(4)(b), as the harm includes significant physical harassment or ill-treatment.

10. According to country information, women who are subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection. DFAT reports that although significant attention has been directed to the level of gender-based violence in PNG by the national government and NGOs, the police response remains inadequate. While the RPNGC lacks the capacity to respond to crime generally, its response to gender-based violence is especially lacking. Domestic and international sources report that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases such as those involving attempted murder, serious injury or repeated rape. Statistics provided by the RPGNC between December 2017 and October 2018 showed 2,013 family and sexual violence (FSV) cases were reported in Port Moresby and the Central Province, resulting in 195 arrests and 11 convictions; that is, only 1 in 200 of reported cases resulted in a conviction.[13] Police officials admitted that police could not keep women and children safe and lacked resources for thorough investigations.[14]

    [13] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16

    [14] US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023

11. FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. The RPNGC has made some progress in recent years with the establishment of Family and Sexual Violence Units (FSV Units) in every province. However, there are not enough FSV Units to respond adequately to the scale of the problem – there are only 106 FSV Unit officers across the country and they are typically subject to the same resource constraints as the rest of the RPNGC.[15]

    [15] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16

12. Considering the above, I find that effective protection measures, as defined in s 5LA, would not be available to the first applicant.

13. I find that the first applicant could not take reasonable steps to modify her behaviour to avoid a real chance of persecution. Such modification would fall within the exception in s 5J(3)(b) of concealing an innate or immutable characteristic.

14. For the above reasons, I find the first applicant has a well-founded fear of persecution in PNG and is a refugee within the meaning of s 5H(1) of the Act.

15. Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Based on the available evidence, I find that the first applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.

    Conclusions

16. For the reasons given above I am satisfied that the first applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion in s 36(2)(a).

17. I am satisfied that the second and third applicants are the minor children of the first applicant and are members of the same family unit as the first applicant for the purposes of s 36(2)(b)(i) of the Act. It follows that they will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

18. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first applicant satisfies s 36(2)(a) of the Act; and

    (ii)that the second and third applicants satisfy s 36(2)(b)(i) of the Act, on the basis of membership of the same family unit as the first applicant.

    Mia Bailey
    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.

    …

    
    

ABC News, Study finds PNG women with more wealth, education experience higher levels of domestic violence, 23 February 2023