2014244 (Refugee) - [2025] ARTA 1154

2014244 (REFUGEE) [2025] ARTA 1154 (25 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2014244
Tribunal:General Member M Bailey
Date:25 March 2025

Place:Brisbane
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that the first named applicant and second named applicant meet the following criterion:
·s 36(2)(a) of the Migration Act

Statement made on 25 March 2025 at 10:21am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – domestic violence by husband – abuse, control and affairs – husband’s breach of protection order, arrest and return to home country while on bail – applicant’s return to visit sick mother and encounters with husband – harassment and threats and younger child taken – court proceedings abandoned when applicant returned to Australia – now divorced with no contact with ex-husband – ex-husband friends with applicant’s brothers-in-law and possibility of tracing – delay in applying for protection – not aware of option – mental health – consistent and credible evidence and supporting documentation – country information – prevalence of gender-based violence and police inaction – member of family unit young adult child – women with no male support or protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(b), (4), 5L, 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Chan Yee Kin v MIEA [1989] HCA 62
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 8 September 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 19 April 2018. The delegate refused to grant the visas on the basis that the first named applicant (applicant) does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The delegate was satisfied that the second named applicant (second applicant) is the biological child of the applicant and therefore a member of the same family unit as the applicant. However, given the applicant was found to not engage protection obligations, the second applicant was found to not satisfy s 36(2)(b) or s 36(2)(c) of the Act.
On 21 September 2020 the applicants lodged a review application with the former Administrative Appeals Tribunal (AAT). A copy of the delegate’s refusal decision was provided as part of the review application. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicants were represented in relation to the review. They appeared before the Tribunal, with their representative, on 13 March 2025 to give evidence and present arguments.
BACKGROUND
The applicant is a [Age]-year-old female. The second applicant, currently [Age] years old, is the applicant’s daughter. Both were born in Papua New Guinea.
As outlined in the delegate’s refusal decision, the applicant travelled to Australia several times between January [Year] and February 2018 as the holder of various Student (TU-560 and TU-576) visas and a Temporary Business (UC-456) visa. She arrived in Australia on a Student (TU-576) visa [in] June 2015. Since that time, she has returned to PNG on 2 occasions: [in] April 2016 and [January] to [February] 2018. She has not departed Australia since [February] 2018.
The second applicant first arrived in Australia [in] October 2015 as a dependant on the applicant’s Student visa. Since that time, she has returned to PNG on 3 occasions: [in] April 2016; [April] 2017 and [January] to [February] 2018. She has not departed Australia since [February] 2018.
The applicants presented their PNG passports to the Department of Home Affairs (Department) in support of the protection visa application. The delegate was satisfied that the applicants are citizens of PNG and there is no information before me to the contrary. I am satisfied that the applicants are citizens of PNG and PNG is their receiving country for the purposes of assessing their protection claims.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicants were represented in relation to their protection visa application by a lawyer from [Organisation]. The applicant attended an interview with the delegate on 6 June 2019, accompanied by her representative. The following documents were submitted to the Department in support of the protection visa application:
i.Statutory declaration of the applicant dated 3 June 2019
ii.Submissions from [Organisation] dated 27 June 2019
iii.Application for a Protection Order dated [Day 1] May 2017 and final Protection Order dated [Day 2] May 2017 issued by the Queensland Magistrates Court
iv.Application for Search Warrant dated [February] 2018 and related documents filed with the Children’s Court, Port Moresby
v.[Social media] messages dated 17 May 2019 stated to be from the applicant’s husband, [Mr A]
vi.Letter dated 22 March 2019 from Legal Aid Queensland to [Mr A] regarding domestic violence and parenting matters
vii.Letters dated 13 March 2018 and 28 September 2018 from the applicant’s treating psychologist, [Dr B]
viii.Letter dated 3 November 2017 from the Department regarding the cancellation of [Mr A]’s Student visa; and
ix.Email dated 25 March 2019 from [Mr A] to the applicant’s Australian lawyer in response to correspondence regarding divorce proceedings.
Relevant information from the application and supporting documents is summarised below:
i.The applicant was born in East New Britian Province and is the [birth order] of 8 children.
ii.Her father, who passed away in 2014, had a distinguished career with the [Employer 1]. Her mother, a retired [occupation 1], currently lives in East New Britain Province with 2 of the applicant’s brothers. A third brother resides in Port Moresby. One sister passed away in 2016; two sisters are married and reside in Port Moresby and another sister is unmarried and resides in East New Britain Province. The husbands of her 2 married sisters are close to [Mr A].
iii.The applicant was employed between 2003 and 2015 as [occupations 2 and 3] with the Port Moresby [Employer 2]. The applicant met [Mr A] in 2003 and they legally married in January 2004 in Port Moresby. Their 2 daughters were born in [Year] and [Year].
iv.The marriage was marred by episodes of domestic violence which became worse over time. Her husband was physically, mentally, emotionally and sexually abusive toward her. He was unfaithful with other women and prostitutes and was abusive when she refused to have unprotected sex. He tried to isolate her from her family and ridiculed her in front of his family and others.
v.The applicant travelled to Australia in June 2015 to study a Bachelor of [Subject] under [an Australian scholarships program]. Her husband and daughters subsequently joined her. While in Australia, the abuse from her husband escalated, impacting on her ability to undertake her studies. They agreed to separate in October 2016 and she is currently pursuing a divorce.
vi.Her husband returned to Australia unannounced on [Day 1] May 2017 with their younger daughter. Following an incident of physical violence, the applicant contacted the Queensland police and obtained a Protection Order dated [Day 2] May 2017. Her husband breached the Protection Order in August and September 2017. Following the breach in September 2017, he was detained by the police and released on bail. [Mr A] returned alone to PNG following this incident.
vii.On [Day 1] January 2018 the applicant and her 2 daughters returned to PNG because her mother was seriously unwell. She planned to fly to East New Britain to spend one week with her mother. She did not inform her husband of her travel to PNG but on arrival at the airport in Port Moresby he was waiting for her with his family. She believes he was told of her arrival by his work colleagues at [Employer 3]. He kidnapped her younger daughter and threatened to take her older daughter. She reported this to the police in Port Moresby and received assistance from the Family and Sexual Violence Unit (FSVU) to prepare a search warrant for her younger daughter. She remained in Port Moresby and was unable to visit her mother as planned.
viii.On [Day 2] January 2018, she had an encounter with her husband at a shopping centre in Port Moresby during which he threatened to harm her and take her older daughter. The search warrant was issued by the court on [Day 1] February 2018 and a court hearing was scheduled for [Day 3] February 2018. However, due to a fear of seeing her husband in court she left PNG for Australia on [Day 2] February 2018, with her older daughter. She has had no contact with her younger daughter since that time and remains deeply concerned for her welfare and safety.
ix.On 17 May 2019 she received messages via [Social media] which she believes were from her husband. The tone of the messages was coercive and they contained untrue statements about her. He has continued to harass her via threatening online messages and tried to contact the second applicant in 2019 at her school in Australia.
i.She is very fearful for her and her daughter’s safety in PNG. She fears that her husband could physically harm or kill her and kidnap the second applicant as he did her younger daughter. Her family and the PNG authorities would be unable to protect them.
In refusing the application, the delegate accepted that the applicant experienced domestic violence throughout her marriage to [Mr A], including while in Australia. The delegate did not accept that [Mr A] kidnapped the applicant’s younger daughter on return to PNG in 2018, finding instead that this was a matter of ‘unresolved child custody issues’. The delegate did not accept that [Mr A] had continued to threaten and harass the applicant following their separation. In coming to this conclusion, the delegate appeared to place weight on the lack of evidence regarding the claimed Protection Order breaches in 2017; the content of the [Social media] messages and email communications submitted (which the delegate did not accept to amount to threats or harassment) and the applicant’s decision to return to PNG in January 2018 despite claiming to fear harm from [Mr A]. Further, the delegate did not accept the applicant was estranged from her family in PNG and would be without familial support and protection on return. Based on these findings, the delegate found there to be no real chance of harm from [Mr A] or for reasons of the applicant’s return to PNG as a single woman.
Evidence before the Tribunal
Prior to the hearing, the applicant’s representative provided written submissions dated 3 March 2025 together with the following supporting documents:
i.Statement of the applicant dated 3 March 2025
ii.Statement of the second applicant dated 27 February 2025
iii.Statement dated 28 February 2025 of ‘[Ms C]’, former [Job title] of the PNG Office of Child and Family Services stating that she is familiar with the applicant’s case relating to the abduction of her younger daughter at Port Moresby airport [in] January 2018. Her colleague, ‘[Mr D]’, who was at the relevant time working under her supervision, prepared the court documents relating to this matter
iv.Letters dated 28 February 2025 and 11 February 2025 from Psychologist, [Dr B], in relation to the applicant and second applicant respectively
v.Police records confirming [Mr A]’s breach of the Protection Order in August and September 2017; and
vi.Research papers regarding the wantok system in PNG and family protection orders in PNG.
In her statement to the Tribunal, the applicant reiterates that she experienced significant and prolonged abuse from her ex-husband which has affected her mental health. In February 2025 she contacted the FSVU in Port Moresby to enquire about the case relating to her daughter’s kidnapping. She was advised by a FSVU police officer that the case remained open until solved. She provided the officer’s contact details. The applicant addressed aspects of the delegate’s reasons, as outlined below:
i.Her departure from PNG the day prior to the court hearing in regard to her younger daughter’s kidnapping: in hindsight she realises she was not thinking clearly; she was in a state of panic and feared seeing her husband in court. She has since lived with remorse and deep regret over her decision to not attend the court proceedings.
ii.Her delay in applying for a protection visa: she arrived in Australia as a student and was not aware of the option to apply for protection until she spoke with [Organisation] following the separation from her husband.
iii.Her inability to obtain protection from her immediate family or ‘wantok’ in PNG: none of her siblings – including her [brothers] – could offer her ongoing protection from [Mr A] and her family are Christian and do not follow the traditions of the wantok system.
In the second applicant’s Tribunal statement, she recalls the events in January 2018 when her father forcibly took her sister on arrival at Port Moresby airport and subsequent interactions with the police in Port Moresby. Her sister continues to reside with her father in Port Moresby. She also refers to text messages received from her paternal aunt and father after she changed her surname on social media from ‘[Surname 1]’ to ‘[Surname 2]’ due to her father’s abusive behaviour. She interpreted her father’s response as threatening.
[Dr B]’s letters state that she treated the applicant between August 2017 and November 2019. She describes the applicant as suffering from complex PTSD, anxiety and depression and being ‘clearly traumatised’ by her ex-husband who was physically, verbally and sexually abusive. [Dr B] recounts statements made by the second applicant during an intake interview, including that she regularly witnessed her father being abusive toward her mother and he was also physically abusive toward her. She became distressed when speaking about her younger sister with whom she hardly speaks after her father ‘snatched her’ from her mother. She described her father as ‘controlling’ and referred to him touching her inappropriately.
In her oral evidence to the Tribunal, the applicant stated that her divorce from [Mr A] was finalised in around 2020 at the Magistrates Court in Brisbane. She sent him a copy of the divorce certificate via email. He is currently living in Port Moresby but she doesn’t know his exact address. Asked about contact with [Mr A] since her protection visa interview, she stated that she used to frequently receive messages from him via an email she created for the purposes of finalising the divorce. She recalls the last contact was in around 2021 and she no longer accesses this email.
Asked about contact with her younger daughter, the applicant stated that she has no contact with her. She became visibly distressed when discussing this issue. She stated that the second applicant has no contact with her father or sister. In her oral evidence to the Tribunal, the second applicant confirmed that she has no contact with her father. On occasion she speaks with her sister while she is visiting her aunt’s house.
Regarding the status of the case filed in PNG in 2018, she stated that it has not progressed because she is not present in PNG and is scared to return. Asked about her interactions with the police regarding domestic violence from her husband, she stated that she approached the police several times, but her husband always found out and it never progressed to a formal complaint.
FINDINGS AND ASSESSMENT
The issue in this case is whether either of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
Criteria for 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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, 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.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1]In the circumstances I have also had regard to the Tribunal’s Guidelines on Vulnerable Persons which define a vulnerable person as a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed. Relevant factors can include a person’s experiences of physical or psychological abuse and trauma, including victims of physical or sexual violence.
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
I find the entirety of the applicant’s claims regarding domestic violence from her ex-husband to be credible. These claims, which were largely accepted by the delegate, have remained overall consistent and are supported by documentary evidence of domestic violence in Australia as outlined above. Based on my listening to the audio recording of the protection visa interview and her appearance before the Tribunal, I am satisfied that the applicant’s oral evidence was based on her genuine lived experiences. Further, her claims accord with a range of independent country information regarding the prevalence of domestic and gender-based violence in PNG, as outlined in the delegate’s decision and below.
Various sources report that violence against women in PNG is very common, with PNG having amongst the highest rates of gender-based violence in the world.[2] Sources report that almost all women and girls in PNG will be subject to violence at some point during their lives. The most recent PNG Demographic Health Survey (2016-18) found that 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15. It has been reported that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of gender-based violence every year.[3] According to a 2023 Parliamentary Committee Inquiry on Gender Equality, gender-based violence is increasingly exponentially.[4] DFAT assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide.[5]
[2] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022; US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023;
[3] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022
[4] Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment, Inquiry into gender equality policies and institutions, gender-based violence and sorcery accusation related violence, October 2023, p.13
[5] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022

According to a report by the US Department of State, gender-based violence including sexual violence, gang rape, and intimate-partner violence, was a serious and widespread problem. Approximately two-thirds of women have reportedly been beaten by their partners. Although the law also criminalizes family violence and imposes maximum penalties of two years’ imprisonment and monetary fines, it was seldom enforced. While the law also criminalizes intimate-partner violence, it nonetheless persisted throughout the country and was generally committed with impunity.[6]
[6] US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023
I accept that the applicant’s husband forcibly took their younger daughter when the applicant arrived at Port Moresby airport [in] January 2018. I accept that her younger daughter continues to reside with [Mr A] and the applicant has had no substantial contact with her since that time. The applicant’s evidence in this regard has remained consistent and is supported by information provided by the second applicant and documentary evidence from PNG. The applicant was visibly distressed when discussing this matter with the Tribunal. In her response to the Tribunal hearing notice, the applicant requested the Tribunal take oral evidence from [Mr D], who was responsible for preparing the court documents for her case. While I did not consider it necessary to take oral evidence from [Mr D], I note that his contact details were made available, as were contact details of the FSVU officer with whom the applicant spoke to in February 2025 regarding the status of her case.
I have placed no adverse weight on the applicant’s decision to depart PNG the day prior to the court hearing [in] February 2018. I accept that the incident on [Day 1] January 2018, together with the encounter with her husband several days later in Port Moresby, would have been extremely distressing and traumatic for the applicant and, in conjunction with her past experiences of abuse, would have caused her to be fearful for her own safety and that of the second applicant.
As outlined above, while the delegate accepted the history of domestic violence, the applicant’s claims regarding ongoing harassment and threats following the separation from her husband in October 2016 were not accepted as credible. The applicant has provided to the Tribunal police records confirming that [Mr A] breached the Protection Order in August and September 2017, which I accept to be credible evidence of ongoing harassment and threats following the agreed separation. As discussed above, I have accepted that [Mr A] forcibly took their younger daughter in early January 2018 and threatened the applicant during a subsequent encounter in Port Moresby.
I also accept the applicant’s evidence of ongoing [Social media] and email messages from [Mr A], including in connection with their divorce proceedings, which she viewed as coercive. Given [Mr A]’s past conduct, I consider the applicant’s interpretation of these messages to be entirely reasonable. As noted in the National Domestic and Family Violence Bench Book, where violence has occurred during an intimate relationship it is common for perpetrators to continue or escalate the violence after separation in an attempt to gain or reassert control over the victim or to punish the victim for leaving the relationship. Where women leave an intimate relationship and continue to experience violence after separation, their former partner may experience an intense sense of loss of control and the violent response may be severe, life-threatening, or lethal. A strong correlation has been found between separation and homicide.[7]
[7] National Domestic and Family Violence Bench Book, Factors affecting risk: Factors affecting risk - National Domestic and Family Violence Bench Book
I have placed no adverse weight on the applicant’s decision to return to PNG in January 2018. I consider that she has provided a reasonable explanation for returning and why she considered it would be safe to do so. I accept that she returned for an intended stay of one week for the purpose of visiting her mother in East New Britain Province who was seriously unwell and did not inform [Mr A] of her return. In the circumstances, I have also placed no adverse weight on the delay in applying for protection and accept that she was not initially aware of the option of applying for a protection visa.
Considering all the above, I accept that [Mr A] continued to contact the applicant, including in a manner amounting to threats and harassment, following their separation in October 2016.
I accept that the applicant is now divorced and would be returning to PNG as a single woman or single mother, together with the second applicant, a single [Age]-year-old woman. I accept that the applicant’s father is deceased, and she has 3 adult brothers: one residing in Port Moresby at [an accommodation]; one residing in East New Britain Province who is mentally unstable due to a brain injury; and one residing in [Town] as a university student. I accept that her 2 brothers-in-law who reside in Port Moresby are friends with [Mr A].
Refugee criterion assessment
Based on the applicants’ circumstances, I find that if they were to return to PNG, they are likely to return to Port Moresby, being their previous place of residence. Considering my findings above, I am satisfied there is a real chance, being a possibility that is not remote or far-fetched,[8] that the applicants would face harm in Port Moresby in the reasonably foreseeable future.
[8] Chan Yee Kin v MIEA [1989] HCA 62
Considering the history of domestic violence and accepted ongoing threats following their separation in October 2016, I am satisfied that the applicant faces a real chance of harm from [Mr A] if she were to return to Port Moresby. I acknowledge that the applicant would wish to have contact with her younger daughter and pursue the legal proceedings that she commenced in early 2018 if she were to return. I find this would significantly increase the chance of harm from [Mr A].
I am satisfied that both applicants face a real chance of harm in Port Moresby as single women without adequate male protection. PNG is a patriarchal society, where women are traditionally dependent on a male partner or guardian for their economic and physical security.[9] According to DFAT, violent and petty crime are common in PNG, especially in Port Moresby and other urban centres. Robbery, assault, sexual assault and gang rape, and property crimes are all relatively common. Informal settlements in and around towns and cities are particularly dangerous. Women face a much greater risk of sexual assault and robbery.[10]
[9] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 24
[10] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022
The delegate found that the applicant would have the support of her family and wantok on return as a single woman. However, in the applicants’ circumstances I am not satisfied that they would have male support in Port Moresby of the level and nature that would offer them meaningful protection. While the applicant has one adult brother residing in Port Moresby, I accept her evidence that given his employment and residence in a [work accommodation], they would be unable to live with him. I have accepted that the applicant’s 2 brothers-in-law residing in Port Moresby are friends of [Mr A]’s. In these circumstances, I acknowledge that the applicant and her daughter would not be able to reside with her sisters and their families. There is no probative evidence before me to indicate that the applicants would have male support or protection in Port Moresby from any other sources.
I have therefore considered whether the real chance of harm relates to all areas of PNG. Considering the past harm from [Mr A], I am satisfied that the applicant would face a real chance of harm from him in all areas of PNG, particularly given the circumstances involving their younger daughter. I am satisfied that both applicants would be residing without adequate male support or protection in all parts of PNG, including East New Britain Province. Considering the prevalence of gender-based violence throughout PNG and the patriarchal nature of PNG society, I am satisfied there is a real chance that the applicants would experience gender-based violence in all areas of PNG.
I am satisfied that the applicants’ fear of persecution is for reasons of their membership of a particular social group which may be described as ‘Single women in PNG’ or ‘Single women in PNG without male protection’. I find these groups to satisfy the definition in s 5L as the characteristics of gender and familial or relationship status are shared by each member of the group, including the applicants; are not a fear of persecution; and are innate or immutable or distinguish the group from society. I find this to be the essential and significant reason for the persecution, as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group and is non-random. I find the persecution to involve serious harm, as required by s 5J(4)(b), as the harm includes threats to their life and significant physical harassment or ill-treatment.
According to country information, women who are subject to gender-based violence in PNG are unlikely to be able to avail themselves of adequate state protection. DFAT reports that although significant attention has been directed to the level of gender-based violence in PNG by the national government and NGOs, the police response remains inadequate. While the Royal Papua New Guinea Constabulary (RPNGC) lacks the capacity to respond to crime generally, its response to gender-based violence is especially lacking.[11]
[11] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
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.[12] Police officials admitted that police could not keep women and children safe and lacked resources for thorough investigations.[13]
[12] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
[13] US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023
FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. The RPNGC has made some progress in recent years with the establishment of FSV Units in every province. However, there are not enough FSV Units to respond adequately to the scale of the problem – there are only 106 FSVU officers across the country and they are typically subject to the same resource constraints as the rest of the RPNGC.[14]
[14] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
Considering the above, I find that effective protection measures, as defined in s 5LA, would not be available to the applicants.
I find that the applicants could not take reasonable steps to modify their behaviour to avoid a real chance of persecution. Such modification would fall within the exception in s 5J(3)(b) of concealing an innate or immutable characteristic.
For the above reasons, I am satisfied that the applicants have a well-founded fear of persecution in PNG and are refugees within the meaning of s 5H(1) of the Act.
Protection in a third country
Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Based on the available evidence, I find that the applicants do not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
Conclusion
For the reasons given above, I am satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a) of the Act.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:
·the applicant and second applicant meet s 36(2)(a) of the Act.
Date of hearing: 13 March 2025
Representative: Mr Hideki Shimizu
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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ABC News, Study finds PNG women with more wealth, education experience higher levels of domestic violence, 23 February 2023