1927302 (Refugee)

1927302 (Refugee) [2024] AATA 3258 (15 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1927302
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Khanh Hoang
DATE:15 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) .

Statement made on 15 May 2024 at 4:16pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – single woman – child out of wedlock – no family protection – wantok system – gender based violence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Papua New Guinea (PNG) applied for the visa on 9 February 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 13 May 2024 to give evidence and present arguments. Present at the hearing with the applicant were three support persons. The Tribunal hearing was conducted with the assistance of an interpreter in the Tok Pisin and English languages.
The applicant was unrepresented in respect of the review; however, she was assisted by the Refugee and Immigration Legal Service (RAILS) in preparing documentary evidence that was presented to the Tribunal.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion s 36(2)(a) or the complementary protection criterion s 36(2)(aa). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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.
Applicant’s identity and country of reference
Based on copies of the applicant’s passport and birth certificate available on the Department’s file, I find that PNG is the applicant’s country of nationality and her receiving country for the purposes of refugee and complementary protection assessments.
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
Claims and evidence before the Department
The applicant was represented before the Department by RAILS. Along with her protection visa application, the following documentary evidence was presented to the Department:
·a psychiatrist report dated 4 March 2019;
·a statutory declaration of the applicant, dated 24 May 2019;
·a statutory declaration of the [Ms A], dated 24 May 2019;
·a copy of the applicant’s birth certificate; and
·a legal submission from RAILS, dated 1 July 2019.
The applicant’s background
According to her statutory declaration dated 24 May 2019, the applicant was born in Mount Hagen. She is now [age] years old. The applicant’s mother[passed] away while giving birth to her, and her father[passed] away shortly thereafter. Her elder brother, [who] was a lot older than her, passed away in 2011.
When her father passed away, the applicant went to live with her brother’s family in a settlement in Mount Hagen. The family treated the applicant as a domestic slave, and she was required to do all of the household chores and to care for her brother’s [young] children. As a result of being required to do housework, the applicant only attended school until [grade]. She claimed that she was often abused by her brother because she was an orphan and had no way to escape. When she was around [age range] years old, her brother attempted to marry her off to an older man who lived in her settlement, but she refused. Her brother hit her with an axe causing her to lose her front teeth. After she was hit a second time, she feared for her life and fled her brother’s home.
The applicant ran away to a church to seek shelter. At the church, she met a man named [Mr B] and his wife [Ms B]. [Mr and Ms B] took the applicant in, and she lived with them in the [Village 1] Village in the Western Highlands from around 2004. The applicant helped [Mr and Ms B] with family with domestic chores and looking after their children. Initially, the family were kind to her, but over time, [Ms B] started treating her unkindly. The applicant was subjected to verbal abuse by [Ms B] and was forced to do all the cooking and cleaning in the house. The applicant stated that she was living in fear while she was with [Mr and Ms B], and she feared for her life in the village. People could identify her as being from a different village because of her appearance. She also claimed to have witness sorcery-related killings in [Village 1] village, and she believed she might become a victim as she was not from the area.
In 2009, the applicant met [Mr B]sister, [Ms A], in [Village 1] village when she came to visit. The applicant learned that [Ms A] was planning to return to Port Moresby. The applicant told [Ms A] that she was being treated like a slave and asked to go to Port Moresby with her. [Ms A] showed compassion towards the applicant and took her to Port Moresby. The applicant lived with [Ms A] for a period before [Ms A]’s ex- partner, [Mr C] [Mr C surname] moved in with them. In 2012, they moved into [Mr C]’s house in Port Moresby and members of his family would come and go, and some were living with them from time to time.
The applicant considered [Ms A] to be her ‘adopted mother’. [Ms A] enrolled her in life skill courses such as sewing and cleaning, but she struggled due to her lack of education. [Ms A] provided the applicant with shelter, life’s essentials and with things to sell at the markets. The applicant would also weave baskets and sell them at the markets so she could have a bit of money. The applicant stated that [Ms A] considered her as an ‘adopted daughter’, and as usual with customary adoptions there is no paperwork of any kind. [Ms A] could not formalise any adoption because the applicant had no family after her brother passed away in 2011.
The applicant explained in her statutory declaration that [Mr C] and [Ms A] gave her the name ‘[Mr C surname]to provide her with a form of social protection. Carrying the [Mr C surname] name meant that she belonged to their family, and they would be able to help her if anything were to ever happen. After she took the [Mr C surname] name, the applicant was issued a birth certificate in 2013, which lists [Mr C]’s mother and father on it. In her statutory declaration of 24 May 2019, [Ms A] explained that she brought the applicant into the [Mr C surname] family by registering her as the sister of [Mr C] on her birth certificate. This was because she had to join through the male line to be accepted into the family. [Ms A] stated that even though she was formally known as [Mr C]’s sister, she considered the applicant to be her ‘adoptive daughter’.
In her statutory declaration of 24 May 2019, the applicant detailed witnessing domestic violence committed by [Mr C] on [Ms A] during their relationship. The applicant stated that [Mr C] never physically harmed her, but she was scared of him. She described that everyone in the [home] viewed as a ‘foreigner’, except [Ms A], who she considered to be her protector.
The applicant first came to Australia [in] July 2017 and stayed for two months until [September] 2017. She was accompanied by [Ms A]’s sister, [Ms D], who was living in Brisbane at the time and [Ms A]’s [daughter]. The trip was paid for by [Ms A]. The applicant returned to Australia [in] October 2017, again with [Ms A]’s [daughter]. [Ms A] arrived in Australia in December 2017. At the time, they all lived in [Ms D]’s house and [Ms D] had departed back to PNG. Within a week of arriving in Australia, the applicant heard [Ms A] tell [Ms D] over the phone that she was not going to return to PNG as she wanted to escape from [Mr C].
The applicant travelled back to PNG [in] January 2018. She was worried about travelling back alone but thought that [Ms A] might later change her mind about returning to PNG. [Mr C] did not know that the applicant had returned to the house in January 2018, as he was working in the Highlands at the time but would often return to Port Moresby. After expressing her fear to [Ms D] and [Ms A], they arranged for the applicant to travel back to Australia. The applicant arrived back in Australia [in] January 2018.
The applicant’s protection claims
The applicant stated that she feared harm to [Mr C] were she to return to PNG. She claimed that she had nowhere to live apart from [Mr C]’s house and that he would harm her out of anger towards [Ms A] or abuse her to find out where [Ms A] is and what she is doing.
Further, the applicant fears that she would be targeted as a single woman in PNG, without [Ms A] or any male protection. She fears that due to her limited education, and with no means of income, she would be forced to turn to domestic slavery to avoid homelessness. If she were homeless, the claimed that she will be physically and sexually assaulted and mostly likely killed out on the streets. She fears that she will be forced to go to a settlement (like a slum) where it is not safe for women and where the risk of harm is elevated due to there being no law and order.
Delegate’s decision
The delegate refused the grant of the protection visa. The delegate found that the applicant continues to be an accepted member of the [Mr C surname] clan, evidenced by her ability to come and go from the [Mr C surname] house. The delegate also considered that because [Mr C] is [deleted], this provides the applicant protection in his home and more broadly in Port Moresby.[1] The delegate considered that the applicant could return safely to the home of [Mr C] and that she would be protected. The delegate also considered that the applicant has ongoing ‘Wantok’ with [Ms D]and [Mr B], which also afford her with protection.[2]
[1] Delegate’s decision record, p 9.
[2] Delegate’s decision record, p 10.
The delegate considered that the availability of protection from the [Mr C surname] clan and extended Wantok relationships appear to have adequately protected her from facing gender-based violence (GBV) in the past, and the delegate was not satisfied that these circumstances would change in the foreseeable future.[3] As such, the delegate considered that the chance of the applicant facing serious harm on the basis of her membership of a particular social groups ‘Women in Papua New Guinea’, ‘Single women in Papua New Guinea’, ‘Single women in Papua New Guinea suffering from a mental health condition’, ‘Women in Papua New Guinea who have experienced domestic abuse’ and ‘Women in Papua New Guinea who are dependent on a guardian’ to be remote, and therefore not well-founded.[4] For the same reasons, the delegate was not satisfied that the applicant faces a real risk of significant harm.
[3] Delegate’s decision record, p 14.
[4] Delegate’s decision record, p 14.
Claims and evidence before the Tribunal
The applicant supplied to the Tribunal the following pieces of documentary evidence:
·a statutory declaration of the applicant, dated 02 May 2024;
·a birth certificate of [Miss E];
·birth registration application, signed by the applicant and [Mr F]; and
·child support documentation dated 2 August 2023 and 5 August 2023;
·legal submissions in support of the applicant’s claims from RAILS;
·photos of [Miss E]’s birth; and
·several personal support letters and employment references.
In her statutory declaration of 2 May 2024, the applicant provided a response to the delegate’s finding that she has protection in PNG. She stated that [Mr C] only accepted her because she was the daughter of his wife, [Ms A], and he and [Ms A] are no longer together. The applicant stated that she is not a blood relative or daughter to anyone and she would return as an adult with a baby girl. The applicant stated that she could not rely on support from [Mr B]and [Ms B], as they had abused her and forced her to compete domestic chores and housekeeping as a slave. They did not protect her then and they would not do so now. She stated that she has not spoken to [Ms D]since [Ms D] left Australia, and [Ms D] had told her before she left Australia that the applicant is a grown women and would need to look after herself.
At hearing, the applicant presented as a credible witness. In conducting the hearing, I have had regard to the fact that the applicant has limited education, and her statutory declaration evidence that recalling past events are traumatic are difficult for her. Indeed, the applicant was visibly upset and emotional at various points during the hearing. However, she was able to answer questions coherently and consistent with the claims she has previously made.
At hearing, the applicant confirmed her experiences of growing up as an orphan in PNG, the harm she suffered from her brother, and how she came into the care of [Mr and Ms B] and eventually [Ms A], who brought her to Port Moresby. She stated that having the [Mr C surname] name made her feel safe and protected while she was in PNG.
I asked the applicant whether having the ‘[Mr C surname]’ name would provide her with a measure of protection and whether she could return to the [Mr C surname] household in the future. The applicant stated that she has no bloodline to the [Mr C surname] family, and that while she respects them, she is now her own woman, and it is not safe for her to return there. She also explained that [Ms D]and [Mr B]have their own families and that they would not be able to protect her either.
The applicant confirmed that she is currently in the process of applying for Australian citizenship for her daughter, [Miss E]. She also confirmed that she is currently in receipt of child support payments from [Miss E]’s father, and that she is currently the sole carer for the child. She also gave evidence that since she has been given work rights, she has lived independently of [Ms A].
The applicant reiterated her of going back to PNG as a single mother, with her daughter [Miss E], with no family and no land or place to go back to. She has no male protection and her only family members are [Ms A] and [Mr F], who not be present to support her in PNG. She expressed a fear that she will be raped or killed, and that it would not be safe for her or her daughter.
COUNTRY INFORMATION
I have considered the following country information in reaching my decision.
According to DFAT’s September 2022 Country Report on PNG, under the heading ‘Wantokism/Wantoks, it is reported that:[5]
‘Wantokism’ is a system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society. Wantokism affects most aspects of contemporary life in PNG, including in business and government. In the Tok Pisin language, Wantok means ‘One Talk’, referring to the language of the tribe or clan to which a person belongs. In PNG, the overall welfare of the tribe and its members is paramount.
Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures those members of the tribe less able to look after themselves are supported.
[5] Department of Foreign Affairs and Trade, Country Information Report, Papua New Guinea, 6 September 2022, p 4.
According to DFAT’s September 2022 Country Report on PNG, under the heading ‘Women’, it states:[6]
3.18 Violence against women and girls in PNG is very common, among the most common in the world. In PNG, such violence is sometimes referred to as Gender-based Violence (GBV) or Family and Sexual Violence (FSV). Sources report that almost all women and girls will be subject to violence at some point during their lives. The PNG Demographic Health Survey of 2016-18, which is the latest data available, found very high levels of violence against women: 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15 (including 48 per cent in the last 12 months); 28 per cent experienced sexual violence; and 18 per cent of women who had been pregnant had experienced violence during their pregnancy. The PNG Coalition of Parliamentarians to End GBV states that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of GBV every year.
3.19 DFAT assesses that women across PNG face a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict their ability to fully participate in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide. Women who are subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.
…
3.21 While there has been significant attention paid to the level of GBV in PNG by the national government and NGOs, and some state resources made available to address it, the police response remains inadequate. The RPNGC lacks the capacity, including most especially vehicles, fuel and human resources, to respond to crime generally (see Police). However, its response to GBV 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. Given how few women seek help from police, this suggests only a tiny proportion of perpetrators of violence are arrested or successfully prosecuted. Even seemingly clear-cut cases can end without a conviction. For example, on 3 September 2021, in Mt Hagen, following the murder of a 31-year-old woman, three men were released from prison following a magistrate dismissing all charges. This was despite the fact that, according to media reports, police found the deceased woman’s body wrapped in a tarpaulin in the back of her husband’s vehicle at a police checkpoint, with the other two co-accused men present, and the husband confessed to the murder. The men were re-arrested following public outcry.
3.22 FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Levels of GBV by police officers themselves are high. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. However, the RPNGC has made some progress in recent years, establishing Family and Sexual Violence Units (FSVU) in every province. Sources told DFAT FSVUs represent progress in the policing of GBV, especially with regard to the willingness to investigate and make arrests, and in their connectedness to other services. However, there are not enough FSVUs to respond adequately to the scale of the problem. There are only 106 FSVU officers across the country and at the time of publication, there is a single FSVU officer in Tari, capital of the Highlands province of Hela, to cover the whole province (population of around 250,000). FSVU officers are typically subject to the same resource constraints as the rest of the RPNGC.
3.23 In September 2013, PNG’s parliament unanimously passed the Family Protection Act (2013). It makes provision for interim protection orders (IPOs) and longer-term protection orders (POs), which forbid contact of the person seeking the order by a spouse, ex-spouse or family member. In-country sources told DFAT that this is a reasonable framework for a justice sector response to GBV, but suggest its implementation remains weak. IPOs can be issued by Village Courts, unlike POs, which must be issued by District Courts. While IPOs reportedly make a positive difference to perceived safety of FSV survivors, sources suggest they are not presently offering women in PNG much protection. Only about 1,000 such orders are issued per year, which is not enough given there are estimated to be 1.5 million acts of GBV in PNG each year. Furthermore, sources report the RPNGC typically lacks the inclination and resources to enforce such orders. That said, breaches of IPOs have reportedly been prosecuted upon occasion and offenders even jailed in several instances in Milne Bay province. Amendments to the Family Protection Act (2013) were passed in January 2022, which increased the penalties for breaching an IPO or PO, created an aggravated domestic violence offence and created an ‘Urgent Notice’ scheme.
3.24 Sources report a significant lack of services for people requiring assistance after suffering family violence. There are now 22 Family Support Centres (FSCs) across the country (one in each province), typically attached to a general hospital to provide health services for GBV survivors. But while the FSC model is an advance for GBV health responses, their services are insufficient. Each centre tends to have 1-2 staff, primarily nurses or social workers, rather than doctors, and receives between 30-100 GBV referrals per month. FSCs usually charge somewhere in the region of PGK 20 (about AUD 8 dollars) for services and/or medical reports. These reports are often used for family compensation negotiations rather than police investigations – and it is normally the families of the survivors who benefit from such compensation rather than the survivor herself.
3.25 While women’s refuges exist in PNG, they are insufficient for the level of GBV that exists. Sources report that Port Moresby, a city of 800,000 people, has only six safe houses for women suffering GBV, open to the public, and mostly run by faith-based organisations. Some of these safe houses have as few as two rooms, one for the survivor and one for a carer, while others can accommodate up to 10 survivors in a shared room. The situation for abused children is even tighter, with very few safe houses able to accommodate unaccompanied children.
[6] Department of Foreign Affairs and Trade, Country Information Report, Papua New Guinea, 6 September 2022, pp 15-17.

A range of other independent sources and reports have described sexual and GBV in PNG as being widespread. For example, the US Department of State’s PNG Human Rights Report of 2022 noted that GBV was ‘a serious and widespread problem’ and that despite the criminalisation of intimate-partner violence, it ‘nonetheless persisted throughout the country and was generally committed with impunity’.[7] Human Rights Watch’s World Report in 2024 highlights that ‘PNG remains a dangerous place to be a woman or girl’ and that gender-based violence remains ‘pervasive’.[8]
[7] US Department of State, Papua New Guinea 2022 Human Rights Report, p 12.
[8] Human Rights Watch, World Report 2024: Papua New Guinea, available at < >
I note that the risk to women and girls of experiencing sexual violence such as rape and gang rape are longstanding in PNG. The PNG Government has commented as far back as 2006, that:
Young women all over the country are at high risk of rape, gang rape and other forms of violent sexual assault, and the attendant fear accompanies them in many aspects of their daily life in urban and rural settings. It severely limits their rights to freedom and to assembly and their right to participate equally alongside young men in all forms of social, political and economic life.[9]
[9] Amnesty International, ‘Papua New Guinea Violence against Women: Not Inevitable, Never Acceptable’, September 2006, available at , p 16.
There is little to suggest that the situation for women and young girls have improved in this respect. In 2023, the Governor of Papua New Guinea’s National Capital District stated that ‘going to public spaces is a big challenge for women and girls’ and that GBV presents as a ‘catastrophic human rights violation for a country not at war’.[10]
FINDINGS AND REASONS
[10] Radio New Zealand, ‘Violence against women and girls ‘increasing’ in Papua New Guinea, MP Says’, <available at of fact
Having considered all the evidence before me, and considering the applicant’s credible evidence at hearing, I accept all her claims for protection.
I accept that the applicant was an orphan in PNG, that she lived with her brother and experienced harm from him before running away. I accept that she lived with — and was forced to be a domestic slave for [Mr B] and [Ms B]. I accept that the applicant moved to Port Moresby with [Ms A] and was given the ‘[Mr C surname]’ name for social protection. I accept that the applicant was not physically harmed by [Mr C], but she was scared of him. I accept that the applicant viewed [Ms A] as her protector and her ‘adoptive mother’ in PNG, but now she is an independent woman who has a child of her own. I accept that [Ms A] and [Mr C] are no longer together and that their relationship has broken down due to domestic violence. I accept that the applicant is caring for her child [Miss E] and that the father of the child is not present in [Miss E]’s life. I accept that if the applicant were to return to Papua New Guinea, she would do so with her child.
Refugee findings
The issue before me is whether the applicant — who would be returning to PNG as relatively young, single mother with [an age]-year-old mix-race child born out of wedlock, without family, male protection, land, or social connections — faces a real chance of persecution in the reasonably foreseeable future.
I will first consider where in PNG the applicant would return to in the reasonably foreseeable future.
I do not consider that the applicant can, or would return to, the [Mr C surname] household and that they would protect her there. Nor do I consider that it is reasonable in all the circumstances to expect the applicant to do so. Although the applicant stated at hearing that she felt protected by the [Mr C surname] name and family while she was in PNG, she has also stated that she was considered a ‘foreigner’ by all of them except [Ms A], while she was living in their home.[11] The applicant has also consistently claimed that she feared being harmed by [Mr C] and the many men who came and went from the household.[12] Although the applicant was not physically harmed in the past by [Mr C], she submits that the risk of harm is now elevated if she were to return with a child born out wedlock, as they would consider her to be a prostitute.[13] Further, the evidence before me suggests that the presence of [Ms A] as her ‘adoptive mother’ and as the person who brought her into the [Mr C surname] clan, was a significant protective factor for the applicant in PNG. Indeed, the applicant’s connection to the [Mr C surname] clan was due to the relationship between [Ms A] and [Mr C]. That relationship has now ceased. Notwithstanding that the applicant carries the [Mr C surname] name on paper, I accept in the circumstances that she has no real blood ties to the [Mr C surname] clan. Without the presence of [Ms A], and the existence of her relationship with [Mr C], I find it highly unlikely that the [Mr C surname] clan would now accept the applicant into their home and provide her with protection. Moreover, given that the applicant has witnessed domestic violence perpetrated by [Mr C] on [Ms A] in the past, and considering country information above on the prevalence of GBV, it is entirely plausible that the applicant fears, and would be at risk of GBV, were she to return to the [Mr C surname] household.
[11] Statutory declaration of the applicant, 4 May 2019, p 4.
[12] Statutory declaration of the applicant, 4 May 2019, p 4.
[13] Statutory declaration of the applicant, 2 May 2024, p 1.
Likewise, I do not consider that the applicant could return to PNG and seek the protection from [Mr B] and [Ms B], particularly as I have accepted that they subjected the applicant to domestic slavery in the past. Indeed, were she to return to the home of [Mr B] and [Ms B], I consider it more likely that they would expose the applicant to further domestic slavery rather than offer her protection. I also accept the applicant’s evidence that she has not spoken to [Ms D]since [Ms D] left Australia, and that [Ms D] told the applicant she is a grown woman and would need to look after herself.[14] I find that the applicant does not have existing and ongoing Wantok relationships with these individuals, who have their own families and little reason to provide support to the applicant and her child upon return to PNG. In the circumstances, I do not consider that the applicant would return to the home of [Mr B] and [Ms B], or [Ms D], and nor is it reasonable to expect her to do so.
[14] Statutory declaration of the applicant, 2 May 2024, p 2.
I find that the most likely place the applicant would return to is Port Moresby, where she resided prior to arriving in Australia. She would do so with no real blood relatives, no ongoing ‘Wantok’ relations or male protection, and no support and accommodation. In these circumstances, I consider that she would find herself homeless and she would be forced to live a life on the streets for the reasonably foreseeable future. I note that the applicant is uneducated and has been engaging in domestic cleaning and landscaping work in Australia, as evidenced by third party references supplied to the Tribunal. I accept her claims that she may need to turn to ‘domestic slavery’ to avoid homelessness. This itself would give rise to a real chance of serious harm to her and her child.
Moreover, — and importantly in the context of my assessment — I accept that the applicant faces a very real chance of experiencing of GBV as a homeless person on the streets of Port Moresby. I accept, having regard to the country information, that there is a real chance that the applicant would be targeted by men, who may rape or gang rape her, or worse, that she would be killed (s 5J(1)(b)). Having regard to the examples of serious harm in s 5J(5), I am satisfied that the harmed feared amounts to a threat to her life or liberty, or significant physical harassment of the person. My real chance findings in this respect are informed by my earlier findings, which suggest that merely carrying the [Mr C surname] name would not afford the applicant protection, in any practical sense, from the real chance of serious harm she faces from men in Port Moresby. Further, I consider that having a child of mix-raced born out of wedlock puts her at elevated risk of being viewed by men as a prostitute on the streets of Port Moresby. This furthers the likelihood of her suffering GBV.
I am further satisfied that the applicant faces a real chance of persecution for reasons of her membership of a particular social group, namely, ‘single women in PNG without male protection’. Having regard to s 5L(a)-(c), I am satisfied that being a single woman and without male protection are characteristics shared by each member of the group, and by the applicant. I am satisfied that these characteristics distinguishes the group from society and is not a fear of persecution.
The country information above suggests that women in PNG face persistent social and discrimination due to long-standing traditional values and gender roles which restrict their ability to participate fully in the community and workforce. As noted above, women face a high risk of gender-based violence regardless of their social status and those who are subjected to GBV are unlikely to be able to avail themselves of adequate state protection or support services. In circumstances where the country information suggests that GBV is normalised, I am satisfied that the persecution that the applicant would face involves systematic and discriminatory conduct (s 5J(4)(c)). I am also satisfied that the applicant’s membership of a particular social group ‘single women in PNG without male protection’ would be the essential and significant reason for the persecution (s 5J(4)(a)).
On the country information before me and having regard to the applicant’s circumstances, I am satisfied that the real chance of serious harm extends beyond Port Moresby to all areas of the receiving country (s 5J(1)(c)). The country information indicates that the prevalence of GBV is widespread and pervasive throughout the country, and it occurs not just in domestic or family contexts, but also in public places. GBV affects women regardless of their social status. Country information suggests there to be a lack of services, safe houses, and shelters for women throughout the country, and given that the applicant has no ‘Wantok’ or family to provide her with protection, I consider there to be no mitigating factors against the real chance of serious harm anywhere in PNG.
I am also satisfied, on the country information before me, that effective protection measures are not available to the applicant. While I accept country information suggests that some improvements have been made in respect of police responses and support for victims of GBV, there are ongoing and significant deficiencies that render state protection ineffective (s 5J(2). Lastly, I do not accept that this is a case where the applicant can take reasonable steps to modify her behaviour in any way to avoid the real risk of serious harm (s 5J(3)).
In all the circumstances, I am satisfied that the applicant has established a well-founded fear of persecution for reason of her membership of a particular social group and she is a refugee as defined by s5H(1). I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
On the available evidence, there is no suggestion that the applicant has a right to enter and reside in any third country such that s 36(3) of the Act would apply.
Having found that the applicant meets the refugee criterion, it is not necessary for me to further assess her claims against the complementary protection criterion.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Khanh Hoang
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.
…

[2024] AATA 3258

15 May 2024

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