1925901 (Refugee)

1925901 (Refugee) [2022] AATA 4805 (12 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Vamanan Yogendran (10444)
CASE NUMBER:  1925901
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Tamara Hamilton-Noy
DATE:12 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)that the second named applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 12 October 2022 at 10:15am
CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea – involvement in the 2017 general election – applicant is in a relationship with the second named applicant – the harm feared by the applicant from the second named applicant’s husband amounts to significant harm – history of family violence – culture of payback and bride price payments – effective protection measures would be available – harm feared is systematic and discriminatory – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 46, 65, 499
Migration Regulations 1994, Schedule 2
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 dependant.
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 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The second named applicant [name] (the second named applicant) arrived in Australia on [date] October 2016 and departed on [date] November 2017. She returned to Australia on [date] April 2017 and departed on [date] July 2017. She returned to Australia on [date] March 2018 and departed on [date] May 2018.
The first named applicant [name] (the applicant) arrived in Australia on [date] March 2018.
The second named applicant returned to Australia on [date] June 2018.
The applicants applied for a protection visa on 18 December 2018.
On 22 August 2019, a delegate of the Department found that neither applicant was owed protection.
Information provided to the Department
In his written protection application, the applicant stated he was born in [Town 1], [Province 1], Papua New Guinea, and that both parents are citizens of Papua New Guinea. The applicant stated that he is of Melanesian ethnicity and of Christian religion. He stated that he had been previously married in December 2013 and had separated from his wife in February 2016 in [Town 1], and had then commenced a de facto relationship in July 2018 in [City 1, Australia]. He stated that his parents, brother and son were residing in Papua New Guinea. The applicant stated that he had lived from [year] to 2017 in [Town 1], from 2017 to 2018 had lived in Port Moresby and that he had been unemployed since the completion of Year 12 and had sustained himself by small-scale farming in his village.
The applicant stated in his written protection application that he had left Papua New Guinea to relieve himself from political violence that had occurred in his province, which had affected his life and caused injuries to his right palm. The applicant stated that during the National Election period in 2017, he had been involved in coordinating the election for [Mr A], a [contestant] . After declaration, the second runner [name]’s supporters mobilised and caused violence, destroyed properties, blocked roads and attacked supporters of the winning candidate. The coordinators were targeted and the applicant was the first person who got a bush knife on the palm of his hand. Many were injured and one of their coordinators was murdered. After the violence, police intervened, however there will be pay back or revenge killing.
The applicant stated that, if he returns to Papua New Guinea, he will ‘be a dead man’. Firstly, his life is under threat for pay-back and revenge killing. Secondly, during his time in Australia he has developed [a medical condition] and in Papua New Guinea the health system is corrupt and there is no right to medicine to treat this kind of sickness and many people die with this disease. He would be unable to afford medicine through the [named] Hospital as they will sell it on a higher price. The applicant stated he did not try and move to another area of Papua New Guinea because it is a third-world nation where they are not provided any form of aid or shelter or food by the government or charity organisations. He would be homeless and his enemies would find him and kill him using telephone or modern technology.
The second named applicant stated she was born in [Town 1], [Province 1]. The second named applicant stated that both of her parents are citizens of Papua New Guinea and that she is of Melanesian ethnicity and is Christian. She stated she was married on [date] December 1999 in [Town 1], that she separated on [date] June 2018 and has been in a de facto relationship since [date] July 2018. The second named applicant stated that she is making her own claims for protection and that she had left Papua New Guinea to stay way from her abusive husband, and that family violence had started after she had her fifth child who was, at the time of application, [age] years old. She stated that, if she returns to Papua New Guinea, she fears that her husband will kill her because she has run away from him and started a relationship with the applicant. She stated that she had experienced harm in Papua New Guinea in the form of her husband having affairs with other women, demanding money, being verbally abusive and sometimes assaulting her. She said she had not reported the abuse to the authorities because her husband threatened to kill her and she had not relocated because it was hard to move away with her five children.
In addition to identification documents, the applicants provided to the Department medical reports relating to the applicant’s medical condition and photos. Relevant parts of these documents are discussed further below.
The applicants participated in an interview with a delegate of the Department on 2 April 2019 and the Tribunal had access to a recording of the delegate’s interview with each of the applicants.
The delegate of the Department accepted that the applicant was involved in the 2017 general election and that he received treatment for a wound in his hand following the election, but found that it was difficult to state this was because the applicant was specifically targeted. The delegate found that the applicant stayed in his village for four to five months after the election, before going to Port Moresby and did not accept the applicant moved to Port Moresby to avoid paying compensation. The delegate accepted the applicant has been diagnosed with [Medical condition 1]. The delegate did not accept the applicant was at risk of harm in Papua New Guinea due to his limited involvement in the 2017 election or that he is owed complementary protection because of his health diagnosis, on the basis that he has been referred to an appropriate facility in [Town 1]. The delegate accepted the second named applicant was a victim of family violence at the hands of her husband and that she had separated from her husband but found that any risk to the second named applicant from her husband is remote. A copy of the delegate’s decision was provided by the applicants to the Tribunal.
Information provided to the Tribunal
On 8 September 2022, the Tribunal wrote to the applicants stating that it had considered the material before it but was unable to make a favourable decision on that information alone. The applicants were invited to attend a hearing at the Tribunal’s Melbourne Registry on 3 October 2022.
On 26 September 2022 the applicants’ representative provided to the Tribunal a statement prepared by each of the applicants, a statement from a third party and written submissions. Relevant parts of these documents are discussed further below.
The applicants appeared before the Tribunal on 3 October 2022 to give evidence and present arguments. The applicants’ representative was present at the hearing and the Tribunal was assisted during the hearing by a Tok Pidgin interpreter.
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.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Consideration of claims and evidence
The issue in this case is whether the applicants meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c), that is, whether they are owed protection as ‘refugees’ or are owed complementary protection, or are a member of the same family unit as such a person. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of reference and backgrounds
Both applicants travelled to Australia on passports issued in Papua New Guinea and have at all times maintained they are citizens of Papua New Guinea. They were interviewed at the Department interview and at the Tribunal hearing using a Tok Pidgin interpreter. The Tribunal accepts that both applicants are citizens of Papua New Guinea and has assessed their claims against Papua New Guinea as their country of nationality.
The Tribunal accepts the evidence given by the applicant at the hearing about his background, which was consistent with his written claims and with the statement he prepared for the Tribunal and which was given in a straightforward and credible manner. The Tribunal accepts the applicant was born in [Town 1], that his father passed away when he was a child and that his mother passed away in 2019. The Tribunal accepts the applicant’s brother resides in [Town 1] and is a subsistence farmer. The Tribunal accepts that after leaving school, the applicant worked in subsistence [farming].
The Tribunal also accepts the evidence given by the second named applicant at the hearing about her background on the basis that it is consistent with her written claims and with her statement to the Tribunal and was given spontaneously and credibly. The Tribunal accepts the second named applicant was born in [Town 1], that her parents are residing in [Town 1] in the house that the second named applicant grew up in and that her five children have been living with her parents for several years. The Tribunal accepts that the second named applicant has [specified children]. The Tribunal is prepared to accept that the second named applicant was married at [age] years of age in a customary marriage and that she has separated but is not formally divorced from her husband.
The applicants have claimed in their written protection application, in the information they each gave to the Department at interview and at the Tribunal hearing that they are in a de facto relationship and have been living together since the second named applicant arrived in Australia in June 2018. They gave consistent evidence to the Tribunal about meeting in [City 1] and about sharing accommodation shortly after the second named applicant returned to Australia in June 2018. They provided to the Tribunal a joint Medicare ‘interim card’ and letters from a [Organisation 1] worker who attests that they are partners, had been seen by the society together and that the second named applicant had been providing care to the applicant when he became ill. The Tribunal accepts that the applicants have been partnered since June 2018 and that they have lived together continuously since July 2018.
The applicant’s claims relating to the 2017 election
The applicant has consistently claimed to have been involved in the 2017 general election and to have been injured as a result of post-election violence in the [Town 1] area. The Department delegate accepted the applicant’s claims about his involvement in the 2017 general election the basis of the level of information he was able to provide about the election candidate and the general circumstances surrounding the 2017 election. The Tribunal has had access to a recording of the delegate’s interview with the applicant, in addition to the information the applicant provided to the Tribunal at hearing, and agrees with the delegate’s finding that the applicant has provided a level of detail about his involvement in the 2017 election that would suggest he was involved in supporting a candidate in the election.
The Tribunal accepts that the applicant supported candidate [Mr A] in the 2017 general election. The Tribunal accepted the applicant’s evidence, given at hearing, that he supported [Mr A] in the election because he was paid to do so and had no other work at the time, that he was paid for a two-month period which was the campaign period and that he was not supporting [Mr A] because of any particular platform [Mr A] was campaigning on, but rather because he was ‘bribed’ (in the applicant’s words) with money to support him.
The applicant gave evidence to the Tribunal at the hearing that his involvement in the election campaign included putting posters up and speaking to people and telling them that [Mr A] is a good candidate. He described to the Tribunal that another 10 to 20 people had joined in him this work, and that there were also other people in other areas supporting [Mr A]. The Tribunal is prepared to accept that the applicant’s role for two months during the 2017 election campaign included putting posters up and speaking to members of the community to encourage them to vote for [Mr A] and that he was paid for this work.
Having regard to the information the applicant provided to the delegate at the Department interview, the information he provided to the Tribunal at the hearing, and the medical information he provided to the Department, the Tribunal is prepared to accept that the applicant was caught up in post-election violence in the [Highlands]. Media reports indicate that, following the election [details deleted], there was rioting, [and serious damage to public property].[1] The Tribunal finds that the applicant’s accounts of the post-election situation in [Town 1] are consistent with media reports confirming conflict and widespread violence over the election results.
[1] [source deleted].
The Tribunal is prepared to accept that, during the post-election violence in 2017, the applicant’s hand was cut and that this injury has caused long-term issues with movement of several of his fingers. A medical letter provided by the applicant to the Department (and again to the Tribunal) states that the applicant’s palm was slashed, resulting in a cut to his skin, muscles and tendons and that he has permanent scarring and finger stiffness due to tendon damage. The Tribunal accepted the information in the medical letter as correct.
While accepting the applicant’s evidence about his involvement in the 2017 election and that he sustained an injury in post-election violence in 2017, the Tribunal is not persuaded that this puts him at risk of harm upon return to Papua New Guinea for the following reasons.
Firstly, the Tribunal does not accept that the applicant had a high profile or senior role in the 2017 that would make him of continued adverse interest to anyone from an opposition party in Papua New Guinea now or in the reasonably foreseeable future. The applicant’s description of his activities in the lead up to the 2017 election has been consistent between information he provided to the Department and information he provided to the Tribunal at the hearing. He has consistently claimed that he has put up posters and spoken to people on behalf of a local candidate. While describing himself in his evidence to both the Department and to the Tribunal as a ‘coordinator’, the Tribunal was not persuaded by his evidence that he was in any coordinating, managing or perceived senior role in the pre-election process. While he described himself as ‘the main one’ to put up posters and as the person paying money out to other volunteers, the Tribunal considered that this role would not have been observable to opposition supporters or widely known in the local community. The applicant was one of some 10 to 20 people who were speaking to local people about a candidate and did not give evidence of organising or otherwise playing a senior role in the campaign. For this reason, the Tribunal does not consider that the applicant played a role in the campaign that the local community, or opposition supporters, would have perceived him as being of importance to the campaign or to the candidate [Mr A].
Secondly, there has been a subsequent national election, in July 2022, for which the applicant was not present and in which he was not involved in any way, as he has been in Australia since 2018. The Tribunal discussed the subsequent election with the applicant during the hearing and observed that it may consider that, because there has been a further election, the applicant’s involvement in a previous election some five years ago would no longer be of interest to anyone in Papua New Guinea. The applicant stated in response that the issue remains. Given the passage of time since the 2017 election and the subsequent national election in which the applicant played no role, the Tribunal considers it more likely that individuals involved in the more recent election who supported [Mr A] would be of interest to opposing supporters. The Tribunal does not consider that any low level support of a candidate in 2017 would cause the applicant to be of adverse interest to anyone if he returns to Papua New Guinea now or in the reasonably foreseeable future.

Thirdly, the Tribunal was not persuaded by the applicant’s evidence that he was specifically targeted when his hand was cut in post-election violence. The applicant’s evidence of post-election violence including properties and cars being burnt and gardens being destroyed was consistent with country information indicating that tribal violence and random killings have occurred in the Highlands in recent years,[2] and that national elections are characterised by sporadic outbreaks of violence and accusations of malfeasance.[3] The applicant described that the other candidate’s supporters came and ‘started fighting people’ and damaged properties. He claimed that he was targeted as a ‘coordinator and front man’ but the Tribunal was not persuaded from his evidence that, in the chaos of the election results and given the widespread violence that occurred across the applicant’s area, he was specifically targeted by supporters of the opposition party. The Tribunal makes this finding on the basis of its earlier finding that the applicant did not have a high profile as a coordinator of [Mr A]’s campaign.
[2] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 2.27
[3] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 2.4.
Fourthly, the Tribunal was not persuaded that the applicant is of adverse interest to his own tribe or to another tribe as a result of property damage in post-election violence in 2017. The applicant claimed at hearing that his own tribe have said that, as he was the coordinator of the campaign, he is responsible for the destruction of property that occurred after the election and that he owes compensation for the damage caused. He stated that the other 10 to 20 people speaking to locals about [Mr A] were not being targeted for compensation because he is ‘the main one’. The applicant later gave evidence that the candidate himself, [Mr A], is able to live in the Highlands without incident. The Tribunal observed during the hearing that it was having difficulty understanding why the applicant would be targeted given [Mr A] was not being targeted and the applicant appeared to have provided only low level support to [Mr A]. The applicant responded by stating that [Mr A] and the tribe is protected, and [Mr A] has resources to maintain his safety.
The Tribunal considers it implausible that, if compensation was being sought as the applicant claims, the candidate who was the head of the campaign and other individuals known to have been advocating on the candidate’s behalf would not be being sought for compensation. The Tribunal considers it implausible that only the applicant would be sought for compensation for post-election damage in circumstances where he was one of many people speaking on behalf of the candidate and the candidate himself was not held responsible for damage in any way. The Tribunal does not accept the applicant is being blamed, by his own tribe or by anyone else, for post-election violence in the Highlands, that anyone is seeking compensation from the applicant for damage caused in post-election violence or that he would be targeted or harmed by anyone in Papua New Guinea because of damage caused to property following the 2017 election. The Tribunal has had regard to a statement prepared by [Mr B] of [Town 1], which states that the applicant received a compensation demand and stayed with him for three months before leaving Papua New Guinea. Given the concerns the Tribunal has about the plausibility and credibility of the applicant’s claims to have been targeted or have compensation claimed from him, the Tribunal does not accept the matters outlined in the statement and does not place any weight on this document.
The Tribunal finds that the violence committed against the applicant was not specifically targeted at him due to his low-level role in the 2017 election. The Tribunal finds that the applicant has been out of Papua New Guinea for some five years and that there has been a further election in 2022, which the applicant played no role in and was not present for. The Tribunal finds that, given these matters, any risk to the applicant because of his low-level involvement in the 2017 elections is remote and is fanciful. The Tribunal finds there is not a real chance the applicant faces serious harm, if he returns to Papua New Guinea now or in the reasonably foreseeable future, because of his involvement in the 2017 general election.
The applicant’s health
The Tribunal accepts from the oral evidence of the applicant at hearing, the evidence given by the second named applicant about the applicant’s current state of health and the medical reports provided to the Department and to the Tribunal, that the applicant was diagnosed in 2019 with [Medical condition 1]. The Tribunal accepts that the applicant received treatment upon diagnosis at a hospital in Perth and that he has been attending a specialist since moving to Victoria. The Tribunal accepts the applicant is currently under the care of a [specialist] and that he is taking oral medication and is attending reviews and specialist [monitoring] for the condition. The Tribunal accepts the information provided by the [specialist] that the applicant will require ongoing treatment and specialist oversight for many years and possibly for the remainder of his life.
The most recent DFAT report for Papua New Guinea describes its health system as fragile, with poor health and immunisation outcomes and as having been assessed by the WHO as among the ten worst health systems in the world. DFAT states that access to health care is extremely challenging for urban poor and rural remote communities.[4] However, despite these limitations in the health system in Papua New Guinea, the Tribunal finds that any harm feared by the applicant in Papua New Guinea arising from his health condition is not for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion. In particular, the Tribunal does not find that individuals with significant health issues, or individuals suffering from [Medical condition 1], are a particular social group within the meaning of the Act on the basis that it does not consider the characteristic to be innate or immutable, so fundamental to the applicant’s identity or conscience that he should not be forced to renounce it, or that it distinguishes the applicant in any way from society. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Papua New Guinea because he has been diagnosed with [Medical condition 1].
Claims arising from the applicant’s current relationship
[4] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 2.16 – 2.17.
The applicant claimed at hearing that he fears returning to Papua New Guinea because he is in a relationship with the second named applicant and that the second named applicant is considered the property of her husband because she was married in customary marriage. The Tribunal accepts that the applicant is in a relationship with the second named applicant. For the reasons set out below in relation to the second named applicant’s claims for protection, the Tribunal has proceeded on the basis that the second named applicant’s husband may have attended the applicant’s home village since he has been in Australia and made threats towards the applicant and the second named applicant.
However, the Tribunal finds that any risk of harm to the applicant from the second named applicant’s husband is not for reasons of the applicant’s race, religion, nationality, membership of a particular social group or political opinion. In so finding, the Tribunal notes that it does not accept that ‘men in a relationship with a married woman’ are a particular social group, on the basis that the characteristics of this group do not distinguish the applicant in any way from society. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Papua New Guinea from the second named applicant’s husband.
The Tribunal has also considered the cumulative claims of the applicant but is not satisfied that he has a well-founded fear of persecution, if he returns to Papua New Guinea now or in the reasonably foreseeable future, for any reason.
The Tribunal is not satisfied that the applicant is owed protection under s 36(2)(a).
Complementary protection claims of the applicant
The Tribunal then considered whether the applicant is owed complementary protection under s 36(2)(aa). This requires the Tribunal to consider whether there are substantial grounds for believing that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
For the reasons set out above, the Tribunal has not accepted the applicant would be targeted upon return to Papua New Guinea because of his involvement in the 2017 election, but has accepted that the applicant is in a relationship with the second named applicant, that the second named applicant is married and that the second named applicant’s husband has threatened the applicant and second named applicant since they have been living in Australia.
Given the culture of payback that exists within Papua New Guinea, the Tribunal is prepared to accept that, if the applicant returns to [Town 1] where his family is from and where the second named applicant’s husband is residing, he faces threats and physical harm from the second named applicant’s husband. The Tribunal accepts that the harm feared by the applicant from the second named applicant’s husband amounts to significant harm as defined in s 36(2A).
The Tribunal has accepted that the applicant is having ongoing treatment and monitoring by a specialist for his diagnosis of [Medical condition 1] and accepts that the health system in Papua New Guinea is poor. The delegate has referred to accessible treatment in the [Town 1] area, however, the Tribunal is not persuaded that this treatment would be available in other parts of Papua New Guinea. The Tribunal accepts that the applicant has been unable to work regularly since receiving his medical diagnosis and that he is reliant on charity organisations and the second named applicant to meet his expenses of daily living.
DFAT describes Papua New Guinea as being roughly 15 per cent urbanised and with half of its population of 9.3 million living in the Highlands region.[5] The majority of the 80 per cent of its population who live in traditional rural communities live off subsistence farming and small scale cash cropping and 85 per cent of the overall population is considered poor, due to a lack of disposable income, low level of education and low level of access to electricity.[6]
[5] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 2.5.
[6] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 2.8.
Wantokism is described as a system of social kinship, welfare and mutual obligation derived from Papua New Guinea’s tribal-based system, which affects most aspects of contemporary life in Papua New Guinea. It operates as a social supporting mechanism that ensures members of the tribe are supported.[7] Papua New Guinea has no formal welfare system and the wantok system provides an informal and limited social protection mechanism during times of hardship. This mechanism is weakening due to demographic changes, urbanisation and the impact of COVID-19 which has pushed many families back or deeper into poverty.[8]
[7] DFAT Country Information Report Papua New Guinea, 6 September 2022, page 4.
[8] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 2.10.
DFAT states that internal relocation for vulnerable groups in Papua New Guinea may be possible and that people can, and do, regularly migrate to cities in search of economic opportunities or to escape tribal and other violence or natural disasters. Up to 50 per cent of Port Moresby’s population is estimated to be comprised of internal migrants residing in informal settlements. However, those relocating to Port Moresby face very high unemployment and very high levels of crime. Individuals relocating commonly rely on family and tribal networks for support. Where relocation has succeeded, it has typically been accompanied by substantial NGO support. Given the take-up of mobile phones and social media, those who relocate are often recognised in their new home and this information will by typically communicated to their place of origin, which may present a threat to those attempting to escape violence.[9]
[9] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 5.15 – 5.16.
Having regard to the applicant’s lack of family ties to anywhere other than [Town 1] and the importance of wantok ties in Papua New Guinea, his poor health and the impact of his health condition on his ability to work, and the situation for individuals who have relocated to Port Moresby including the levels of crime and unemployment, the Tribunal finds that it is not reasonable for the applicant to relocate to another area of Papua New Guinea where there would not be a real risk he would suffer significant harm.
Reported limitations of the Royal Papua New Guinea Constabulary (RPNGC) include a failure to respond to requests for assistance, persistent reports of police abuse, the use of unnecessary violence, the committing of crimes by serving police officers including alleged murders, and resource and staffing constraints, transport limitations including a lack of vehicles and fuel, poor training and a disinclination to act in response to gender-based violence and tribal fights due to sympathy for alleged perpetrators.[10]
[10] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 5.3 – 5.5.
Given the significant limitations within the police force, impacting its capacity to undertake investigation and prosecution of alleged offenders, the Tribunal finds that the applicant would not be able to obtain, from the authorities in Papua New Guinea, protection such that there would not be a real risk he will suffer significant harm.
The Tribunal is satisfied that the risk to the applicant is faced by him personally and not by the population of the country generally.
The Tribunal therefore finds that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea. The Tribunal is satisfied that the applicant is owed protection under s 36(2)(aa).
The second named applicant’s claims
The second named applicant has consistently claimed to have left Papua New Guinea due to a history of family violence perpetrated against her by her legal husband. The Tribunal has listened to a recording of the second named applicant’s interview with the Department in which she outlined details of abuse she had experienced, has considered her written claims and statement prepared for the Tribunal in addition to witness statements she has provided the Tribunal, has had the opportunity to speak to the second named applicant at a hearing about the history of family violence she claims to have experienced and has had regard to relevant country information about the prevalence of family violence committed across Papua New Guinea.
The Tribunal accepts that the second named applicant was subject to a range of family violence at the hands of her husband from 2012 to 2018, when she made a decision to remain in Australia and seek protection. The Tribunal accepts that that second named applicant is a mother to five children who have remained in Papua New Guinea during her travel to Australia and that her children are the reason she has returned to Papua New Guinea on several occasions, in addition to her hope that things would change within her relationship and the violence would cease. The Tribunal therefore makes no adverse finding about the second named applicant’s credibility arising from her return trips to Papua New Guinea since first arriving in Australia.
The Tribunal discussed with the second named applicant during the hearing her delay in applying for protection in Australia, given she last arrived in June 2018 and did not apply for protection until December 2018. While the Tribunal had some difficulty accepting the second named applicant’s claim that she was not aware of what to do, on balance, the Tribunal is prepared to find that the second named applicant’s delay in claiming protection does not negatively affect the overall credibility of her claims. Accordingly, the Tribunal has placed no weight on the delay in seeking protection in this matter.
The Tribunal is prepared to accept that the second named applicant was subject to verbal, emotional and physical abuse from her husband over a six year period and that there was one particularly significant instance of physical abuse where her husband beat her and caused damage to her leg. The Tribunal accepts that the second named applicant was reluctant to seek assistance from the police or medical authorities on the basis of her husband’s threats that she would be killed if she disclosed the abuse that was occurring. The Tribunal accepts that the second named applicant’s parents were aware of the abuse but were unable to intervene given the cultural context in which the abuse was occurring. The Tribunal has placed some weight on a statement prepared by the second named applicant’s mother, outlining her observations of the second named applicant’s presentation and functioning while in the marriage in Papua New Guinea, on the basis that the matters outlined in the statement are detailed, plausible and are consistent with the applicant’s own evidence which the Tribunal has accepted. The Tribunal has also placed some weight on the applicant’s cousin’s statement, who was proposed as a witness in these proceedings but whom the Tribunal did not take evidence from given the Tribunal’s findings in this matter.
The Tribunal accepts that the second named applicant left Papua New Guinea because of prolonged family violence from her husband and that she fears returning to Papua New Guinea because of a fear of her husband further physically assaulting and verbally harassing her. The Tribunal accepts that the second named applicant, while remaining married to her husband under customary law, is in a relationship with the applicant and that they would return to Papua New Guinea together as a couple, if the are required to return now or in the reasonably foreseeable future.
The second named applicant has provided to the Tribunal copies of [social media] messages she claims to have received from her husband since arriving in Australia. The screen on which the messages are displayed indicate they were sent between 27 July and 15 August; a handwritten note on the documents states that they were sent in 2019. The Tribunal raised concerns about the messages with the second named applicant during the hearing, firstly in relation to the name of the sender being ‘[name]’. When asked why her husband was listed as ‘[name]’ on her messages, she stated in response that he possibly opened an account and she is not aware of what he is doing. When asked whether her husband had ever been known by that name, the second named applicant then stated that it is the name of the place that he belongs to. Secondly, the Tribunal expressed some doubt that, after the sender was listed as ‘blocked’ in July, she would have been able to receive further messages that were shown as having been received in August. The second named applicant stated in response that she had blocked him and had reopened another account so she could speak to the children and that he had contacted her on the new account. She stated that she would ‘block and reopen’ her account so she could speak to her children.

The Tribunal has some doubts that the messages provided by the second named applicant represent messages her husband has sent to her since she has been residing in Australia. However, the Tribunal considers it plausible that the second named applicant would have blocked these type of messages, but would have subsequently made herself available again online so that she could remain in contact with her children, in circumstances where she claims her husband and the children were sharing a phone and messenger account. As the Tribunal is unable to find with any certainty that the messages in question are not from the second named applicant’s husband, it has proceeded on the basis that the second named applicant may have received threatening messages during 2019, since she has been living in Australia.
The applicants have provided statements to the Tribunal from a community leader and village magistrate, [name], stating that the second named applicant’s husband came to their village looking for the applicant and seeking repayment of ‘bride price’. The Tribunal also has doubts about the veracity of this statement, on the basis of its strong similarity to a separate statement prepared by [Mr B] about the applicant’s political claims (for example, in both statements, the witnesses describe themselves as a ‘community leader and village magistrate’, and the format and font of both statements are identical, leading the Tribunal to find that, at the very least, they were not prepared independently of one another). However, given the findings of the Tribunal, above, about the second named applicant’s general credibility and about the plausibility of her claims to have been subject to family violence, the Tribunal is unable to make a clear finding that the second named applicant’s husband has not attended the applicant’s local village to threaten the applicant and the second named applicant. The Tribunal has proceeded on the basis that this may have occurred and therefore has proceeded on the basis that the second named applicant’s husband may have sent the second named applicant threatening messages in 2019 and may have spoken to people in the applicant’s village, also in 2019, to express threats towards the applicant and second named applicant because of their relationship.
Country information considered by the Tribunal states that in 2020, Papua New Guinea ranked 161 out of 162 countries on the Gender Inequality Index, behind Yemen as the worst.[11] Family violence is described by DFAT as among the most common in the world, with sources reporting that almost all women and girls will be subject to violence at some point in their lives. In a study undertaken between 2016 and 2018, 58 per cent of women aged 15 to 49 had experienced physical violence since the age of 15 and 48 per cent had experienced this in the previous 12 months; 28 per cent had experienced sexual violence and 18 per cent had experienced violence during their pregnancy. DFAT assesses that women in Papua New Guinea face a high risk of societal discrimination due to long-standing traditional values and gender roles and a high risk of gender-based violence, regardless of their social status. Women in the Highlands provinces are considered at particular risk.[12]
[11] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 3.17.
[12] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 3.18 – 3.19.
DFAT further states that ‘bride price’ payment remains a common cultural practice in Papua New Guinea and that this relates to a sum of money paid to a woman’s family by a groom or his family. In recent years, bride price has become increasingly monetised and has led to a send of ‘ownership’ of wives in some cases, giving husbands a sense of entitlement which can be seen as permitting violence. An obligation to pay back bride price in the case of a marriage breakdown has been reported to complicate the ability of women to leave violent relationships.[13]
[13] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 3.20.
The Tribunal accepts that, given the history of violence perpetrated against the second named applicant by her husband and her commencement of a new relationship while still married to her husband, the second named applicant fears harm, if she returns to Papua New Guinea now or in the reasonably foreseeable future, from her husband. The Tribunal finds that the harm feared by the second named applicant includes a fear of threats to her life, significant physical harassment and significant ill-treatment. The Tribunal finds that the harm feared amounts to serious harm within the meaning of s 5J(5). The Tribunal finds that the chance is more than remote that the applicant faces serious harm from her husband in Papua New Guinea, given the culture of payback and bride price payments in Papua New Guinea.
Violence and petty crimes are described as common in Papua New Guinea, particularly in Port Moresby, Lae and other urban centres, with robbery, assault, sexual assault, gang rape and property crimes being described as relatively common. Women face a greater risk of sexual assault and robbery, in addition to being subject to high levels of family-centred violence.[14]
[14] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 2.26.
Despite significant attention having been paid to the level of gender-based violence by the government and NGOs, police responses remain inadequate. The RPNGC lacks the capacity to respond to crime generally, however, its response to gender-based violence is described as ‘especially lacking’. Domestic and international sources state that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases. An estimated 1 in 200 reported cases resulted in a prosecution in 2017 and 2018 and even seemingly clear-cut cases have ended without a conviction. Recently, for example, charges were dismissed against three men who had been found with a woman’s body in the back of a vehicle they were all present in, and following her husband’s confession to the murder. Family violence is seen by many police officers as a private matter in which the state should not interview and levels of gender-based violence perpetrated by police officers themselves are described as high.[15]
[15] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 3.21 – 3.22.
In September 2013, the Family Protection Act 2013 was unanimously passed in Parliament, which makes provision for interim protection orders and longer term protection orders. Implementation of this framework reportedly remains weak, with sources stating they are not offering women much protection and a low number of orders being issued per year compared to estimated levels of victims.[16] Human Rights Watch states that laws designed to protect women and children, including the Lukautim Pikinini (Child Welfare) Act 2015, are rarely enforced and that initiatives such as family sexual and violence units within the police force remain limited.[17]
[16] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 3.23.
[17] Human Rights Watch, World Report 2022, Papua New Guinea.
DFAT states that police responses to gender-based violence remain inadequate and that the RPNGC lacks the capacity to respond to crime generally, and that its response to gender-based violence is particularly lacking.[18] Alleged abused of power and the use of unnecessary violence by police have been consistently highlighted by international human rights bodies. The effectiveness of the police force is severely limited by resource and staffing constraints and policy are routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. Officers endure poor working and living conditions and are generally poorly trained. DFAT assesses that the capacity of the police force to provide protection to vulnerable cohorts is severely limited and that protection will often only be provided following a large public outcry.[19] Other sources have noted reports that police officers themselves commit sexual violence against victims, including against women in detention.[20]
[18] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 3.21.
[19] DFAT Country Information Report Papua New Guinea, 6 September 2022, at 5.4 – 5.6.
[20] US Department of State, 2020 Country Reports on Human Rights Practices: Papua New Guinea, 30 March 2021 at
Given the levels of violence against women, the ineffective legal framework for victims to seek protection and the culture of payback that exists across Papua New Guinea, and the role of police as perpetrators of violence against women, the Tribunal finds that there would be systematic and discriminatory withholding of state protection to the second named applicant from the harm feared from her husband and that the reasons for this are because she is a separated woman in Papua New Guinea. The Tribunal finds that the real chance of persecution exists across Papua New Guinea. The Tribunal is satisfied that the second named applicant is owed protection under s 36(2)(a).
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. The Tribunal is satisfied that the applicant satisfies the criterion in s 36(2)(aa) and that the second named applicant satisfies the criterion in s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii) that the second named applicant satisfies s 36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
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.
…

[2022] AATA 4805

12 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction