2100989 (REFUGEE)

[2025] ARTA 1455

2100989 (REFUGEE) [2025] ARTA 1455 (6 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2100989

Tribunal:General Member M Bailey

Date:6 March 2025

Place:Brisbane

Decision:The Tribunal affirms the decisions under review

Statement made on 06 March 2025 at 12:11pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – domestic violence – threats and physical abuse – further abuse during return for sister’s funeral – student visa ceased and short period as unlawful non-citizen – continuing threats to family and to applicant via email and social media – witness statements – inconsistent and implausible claims and evidence – no mental health treatment or supporting evidence – anonymous allegations given no weight – member of family unit child born after application made and added to application – citizenship status unconfirmed – second child born after visa refused – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 375A
Australian Citizenship Act 2007 (Cth), ss 12(1)(a), 37
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 5 January 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (applicant) applied for the visa on 13 March 2018. The second named applicant (second applicant) was born in [Year] and subsequently added to the protection visa application by the Department of Home Affairs (Department). No individual protection claims were raised on behalf of the second applicant.

3. The delegate refused to grant the visas on the basis that the applicant did not satisfy 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 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.

4. On 29 January 2021 the applicant 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. The review application did not include the second applicant. The Tribunal wrote to the applicant noting the omission of the second applicant and advising that if she wished her son to be included in the review, she could submit an amended application. On 18 February 2021, the applicant submitted an amended review application which included the second applicant.   

5. 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.

6. On 8 January 2025, the Tribunal was advised that the Refugee Advice and Casework Service (RACS) had been engaged to represent the applicants in relation to the review application. The applicant appeared before the Tribunal in person on 5 February 2025 to give evidence and present arguments. Her representative attended the hearing by videoconference.

   BACKGROUND

7. The applicant is a [Age]-year-old female from Papua New Guinea. As outlined in the delegate’s refusal decision, the applicant first arrived in Australia [in] January 2016 on a student (TU-572) visa. She first departed Australia [in] September 2016 and returned [in] October 2016. She departed Australia for a second time on [Date 1] November 2017 and returned on [Date 2] November 2017. Her student visa ceased on 17 December 2017.

8. The applicant presented her PNG passport to the Department in support of the protection visa application. I am satisfied that the applicant is a citizen of PNG and PNG is her receiving country for the purposes of assessing her protection claims. 

9. As discussed above, the second applicant was born in Australia. A copy of a Queensland birth certificate for the second applicant was provided to the Department which records the applicant as his mother and ‘Mr CK’ as his father. As outlined in the delegate’s refusal decision, the applicant stated to the delegate at the protection visa interview that Mr CK is an Australian permanent resident. The applicant was subsequently requested on several occasions to provide evidence to the Department of the second applicant’s Australian citizenship. As no evidence was submitted, the second applicant was deemed to be included in the applicant’s protection visa application.

10. As outlined below, RACS made submissions to the Tribunal regarding the second applicant’s Australian and PNG citizenship status. These issues are considered below. While the applicant indicated to the Tribunal that she may wish to withdraw her son from the review application, to date the Tribunal has not received a written request to that effect. As such, I have proceeded to make a decision for both applicants.

    CLAIMS AND EVIDENCE

    Evidence before the Department

11. The applicant was not represented in relation to her protection visa application. According to the protection visa application, she was born in [District 1], East Sepik Province and resided in Port Moresby. Regarding her education details, she attended primary school in Port Moresby between [year range]; high school in [Town 1] between February [year] and November [year]; and high school in Port Moresby between February [year] and November [year]. Her relationship status is ‘Separated’.

12. Regarding her claims for protection, she stated (in summary) that she left PNG because of her abusive and violent partner, ‘[Mr B]’. He is a rich businessman from [Town 1], an alcoholic and a womaniser. She was often threatened and physically abused by him. When her father learnt of this, he advised her to leave [Mr B], but he would not let her go. He found her and forced her back to his house. Her father realised that no place in PNG was safe for the applicant because [Mr B] would find her. To get her out of the country, her father sponsored her to come to Australia to study.

13. The applicant provided further details of the harm she had experienced in PNG as summarised below:

    i.At [age] years old she fell in love with [Mr B] who is [Number] years older than her. He told her that he had divorced his wife and she would be his only wife. After a few months, she discovered that had lied and had other wives and mistresses. He is from [District 2], Western Highlands Province, where polygamy is common and women are treated as possessions. One year into their relationship – [deleted] – all her movements were being strictly monitored.

    ii.Her father strongly disagreed with the relationship and told her to cease all contact with [Mr B], but [Mr B] told her he had already spent so much money on her that she was his wife. She had no choice but to give in to him. He physically abused her several times as evidenced by medical and police reports.   

    iii.Her father realised her life was in danger and arranged for her to come to Australia as a student for her safety. She only returned to PNG in 2016 and 2017 as she was fearful of [Mr B] learning of her whereabouts. He managed to locate her when she returned to PNG in November 2017 for her [sister’s] funeral.

    iv.On 11 November 2017 she saw [Mr B] in town – he dragged her into his car and when she screamed for help, he physically assaulted her. He threatened to kill her if she didn’t go with him. He was not aware that she was [pregnant] to another man at the time, which would have made him angrier. She reported this incident to the police.

14. If she returns to PNG she will be beaten, abused or killed by [Mr B]. He has beaten other women to death and uses his money to bribe police to avoid arrest. The risk would be greater because she is pregnant with another man’s child. He would be able to find her throughout PNG.

15. The applicant provided several media reports regarding incidents of gender-based violence in PNG (none of which relate to the applicant personally) together with copies of the following supporting documents:

    i.Letter dated 10 June 2018 from a church elder (‘Mr W’) in Port Moresby stating that the applicant sought counselling from the author in relation to an abusive and life-threatening relationship with [Mr B]. 

    ii.Letter dated 17 June 2018 from a friend (‘Ms Z’) in Port Moresby stating she has personally witnessed the applicant’s experiences of physical and verbal abuse from [Mr B]. She is aware that [Mr B] is a rich businessman with many other wives and mistresses in PNG.

    iii.Letter dated [March] 2018 from a Police Superintendent in Port Moresby (Police Letter) referring to 3 reported incidents of domestic violence by [Mr B] toward the applicant: 18 November 2014, 14 March 2015 and 11 November 2017. [Mr B] is recorded as currently residing in Port Moresby and ‘yet to be arrested by police’.  

    iv.Letter dated 6 April 2018 from a ‘Consultant Physician’ at [Hospital] (Medical Letter) stating that the applicant ‘has had reported history of being a victim to a person named [Mr B] of [District 2], WHP [Western Highlands Province] whilst residing in Port Moresby. [Mr B] always abuses and assaults her at different occasions which is shown by medical records’. Details are provided of 3 incidents in which the applicant is said to have reported to the hospital due to injuries from [Mr B]: 18 November 2014, 14 March 2015 and 11 November 2017.   

    v.Undated email from [Mr B] titled ‘[applicant name] you’re messing with the wrong person’ stating (in summary) that he is sure she has escaped to Australia with her unborn child. He went to her parents’ house in Port Moresby last week to ask for her whereabouts, but their responses indicated she had left the country to escape from him. She is mistaken if she thinks he is out of her life and she has only made the situation worse by leaving. He paid her bride price and school fees and that means he owns her unless she repays all the money he spent on her. He threatens to seriously harm or kill her if she returns to PNG.

16. The applicant attended an interview with the delegate on 21 May 2019. I have listened to an audio recording of the interview. The following is a summary of relevant evidence provided at the interview, as recorded in the delegate’s refusal decision:

    i.Regarding her family members, the applicant stated that her parents live in Port Moresby. Her father owns several businesses in East Sepik and operates [a] business from Port Moresby. She is in regular contact with her parents.

    ii.She has [siblings], including one sister who passed away in 2017. Her siblings are all adults and live in Port Moresby, East Sepik and [Town 2].

    iii.She met [Mr B] while in grade [deleted] and the relationship became serious when she was around [age] years old and attending school in [Town 1]. During that time she was living with her uncle and his family in [Town 1]. [Mr B] owns several businesses in [Town 1] and Port Moresby. They never formally married but he considered her as his property because he had given her and her uncle gifts and money while she lived in [Town 1].

    iv.Her parents became aware of the relationship with [Mr B] in 2014 when the applicant was halfway through year [grade]. They moved her to Port Moresby to [do] her schooling as they did not agree with the relationship.

    v.[Mr B] did not accept that the relationship was over. He was physically abusive toward her in 2014 and 2015 because she refused to resume the relationship. She reported these incidents to the police. There was a further incident of violence from [Mr B] when she returned to Port Moresby in November 2017 for her sister’s funeral. She and her father reported this incident to the police and the applicant then went to stay with her maternal uncle in [Suburb 1], near Port Moresby, before departing for Australia. Following the police report in November 2017, the police went to [Mr B]’s house in Port Moresby but he had already escaped.

    vi.She believes [Mr B] would be aware if she were to return to Port Moresby because he has many family members and other connections in the area that her parents live.

    vii.Asked why she would still be of interest to [Mr B] given he has many wives and mistresses and did not pay any money to her parents, she responded that she is not sure but she was previously of interest to him.

17. In refusing the application, the delegate expressed concerns regarding the applicant’s credibility and considered her primary motivation to remain in Australia was for educational and economic reasons. However, based on the general prevalence of gender-based violence in PNG the delegate accepted that the applicant had experienced incidents of domestic violence while in a relationship with [Mr B]. The delegate did not accept that [Mr B] had threatened to harm the applicant if she returns to PNG. Given the prevalence of document fraud and official corruption in PNG, the delegate placed little weight on the supporting documentary evidence, including the claimed email from [Mr B].

18. The delegate found that the applicant and her son would have protection and support from her family members and ‘wantok’ in PNG and was not satisfied she would face a real chance of serious harm or a real risk of significant harm on return to PNG.

    Evidence before the Tribunal

    Pre-hearing evidence

19. On 12 February 2021, the applicant submitted to the Tribunal a written statement addressing the delegate’s refusal decision (2021 Statement). Relevant evidence from this statement is summarised below:

    i.She clarified that she first met [Mr B] while attending primary school in [Town 1] and stated that she was in a relationship with [Mr B] during the period of almost 5 years that she attended school in [Town 1]. A copy of a school certificate dated December [year] from a primary school in [Town 1] was provided stating that the applicant completed 6 years of education at this school between [year range].

    ii.She acknowledges that she has family connections in PNG but claims it is ‘of no help’ because they were silenced by money and compensation from [Mr B]. Whenever she ran to her family to seek refuge, they would send her back saying that is part of marriage.

    iii.Her father thought the best way for her to get away from [Mr B] was to come to Australia to study. At that time, her father was financially stable and able to sponsor her visa, whereas ‘today he lost everything’.

    iv.When she returned to PNG from Australia, only her immediate family knew of her return; she stayed at home and did not go anywhere. By the time [Mr B] found out she was in PNG, she had returned to Australia. She did not return again to PNG until her sister passed away because [Mr B] was threatening her family and looking everywhere for her.

    v.In November 2017, she felt the need to return for her sister’s funeral and only told her immediate family of her travel plans. However, 3 days after her return, [Mr B] learnt she was in Port Moresby. He flew down from [Town 1] and came to her ‘residential place’ and abused her there. She stayed ‘hidden in Port Moresby’ for 5 days. Her sister’s burial took place on the sixth day and then she returned to Australia.

    vi.Her student visa ceased one month after she returned to Australia, and she was unlawful for a short period due to late payment of her course fees. Around this time, she learnt about a protection visa and lodged an application herself as she feared returning to PNG.

    vii.She fears returning to PNG with her young son. She fears harm from [Mr B]. Her father would not be able to protect her as ‘at this point he is very much struggling’. She could not return to her village in [District 1] because of sorcery attacks. Her family left the village when she was 14 years old for this reason and have not returned since that time.  

20. On 6 January 2022, the applicant submitted to the Tribunal a letter advising of the birth of her second son on [Date]. A copy of her youngest son’s Queensland birth certificate was provided to the Tribunal in November 2023. This records the applicant as his mother and Mr CK as his father.

21. On 3 February 2025, RACS submitted a signed statement by the applicant dated 3 February 2025 (Tribunal Statement), together with supporting documents. Relevant information from this statement is summarised below:

    i.In around 2012 her parents sent her to live with her maternal uncle and aunt in [Town 1] because of some issues in their village in East Sepik Province.

    ii.She first met [Mr B] in [Town 1] in 2012, when she was [age] years old. He was in his late [age range] at the time. He was a prominent and influential local businessman. He would come to her house when her uncle and aunt were out and gave her gifts and money. They kept a ‘low profile’ when spending time together and her family were initially unaware of the relationship.

    iii.As the relationship became more serious, [Mr B] became increasingly controlling and physically violent. He would often force her to have sex with him. Her aunt and uncle noticed changes in her behaviour and her aunt ‘guessed what was going on’. Her uncle, a policeman, was familiar with [Mr B] and did not want to get involved as he did not want to put his family and job at risk.

    iv.In around year [grade], she told her parents about the situation as she did not want to marry [Mr B] and wished to continue her studies. They helped her to move to Port Moresby to live with them. Her father believes in women being independent and was supportive of her wishes to continue studying.

    v.She moved to Port Moresby in 2014 without telling [Mr B]. One week after her arrival in Port Moresby, [Mr B] came to her parents’ house with some male relatives and gifts. He did not make any threats, but she was scared that he had followed her.

    vi.[Mr B] continued to come to Port Moresby to see her and became increasingly aggressive and violent. Her parents tried to avoid [Mr B] because they were fearful of him. Most of the physical abuse she experienced in Port Moresby occurred outside the family home. Her family ‘interfered many times to help’ her but this only made the situation worse.

    vii.The first major incident began on 18 November 2014. [Mr B] came to her parents’ house and demanded she get into his car. Several men from his tribe were in the car. [Mr B] punched her in the face and insisted that she stay with him at a hotel overnight. He let her return home the following morning. When her parents learnt what had happened, they took her to Port Moresby General Hospital. She was told she had a dislocated jaw and was given medication. Her parents then took her to [Suburb 2] police station to file a report. When she followed up with the police, they told her it was a family issue.

    viii.[Mr B] continued to be controlling and violent. On 14 March 2015 he picked her up from the house of ‘Ms B’ who is like an aunt to her. He forced her to get into his car and physically assaulted her. She stayed at [Mr B]’s house in Port Moresby overnight and returned home the following morning. Her parents took her to Port Moresby General Hospital and to [Suburb 2] police station to file a report. Around this time her sister, [Ms F], tried to seek help from a domestic violence organisation, [Organisation 2], but they were not able to assist.

    ix.She applied for a student visa to Australia mostly to escape from [Mr B]. She felt ‘free and happy for the first time’ in Australia because [Mr B] could not harm her. After she left for Australia in January 2016, [Mr B] and his tribesmen sometimes came to her parents’ house demanding to see her. They threatened to burn down the house or harm her parents.    

    x.She decided to return to PNG in September 2016 because, although she was scared of [Mr B], she was homesick and missing her family. She heard that [Mr B] was in [Town 1] and thought it would be safe to return to Port Moresby. While in Port Moresby between [September] and [October] 2016, she only saw her family and kept a low profile.

    xi.Following her return to Australia, [Mr B] continued to threaten her and her family. He would reach out to her via [Social media]. She does not have a copy of these messages as they were on her old [Social media] account. She created a new account after receiving his messages and blocked [Mr B].

    xii.Her sister passed away on 1 November 2017. Although she feared [Mr B], she felt she had to return for her sister’s burial. She arrived in Port Moresby on [Date 1] November 2017 and ‘remained low key’. On 11 November 2017, [Mr B] showed up while she was at the morgue with her parents and other family members. He forced her to get in his car and took her to his house where he was physically abusive toward her. After he took her home she attended the hospital and filed a report with the police. On [Date 2] November 2017, she returned to Australia.

    xiii.Her student visa ceased on 17 December 2017, but she knew she could not return to PNG. She came to learn about a protection visa in March 2018 through a friend and submitted the application by herself. She asked her father to obtain evidence from the hospital and police. In early 2018, her father sent her the Police Letter and Medical Letter, which were prepared based on their file notes.

    xiv.She fears that [Mr B] will harm her and her children if she returns to PNG. She is more fearful now as she has 2 children to another man. [Mr B] has continued threatening her after her final departure from PNG. On 26 March 2019 she received a threatening email from [Mr B].

    xv.[Mr B] has also continued to threaten her family. Around 2 years ago her parents moved to [Town 2] because of the threats from him. He also threatens her family members who reside in Port Moresby. According to her sister, [Ms F], [Mr B] threatened her family as recently as one month ago.

    xvi.Her family members in PNG would be unable to protect her from [Mr B] who is powerful with many connections. Her father is now in his late 60’s and is not very wealthy.       

1. Documents submitted with the Tribunal Statement include:

   i.Birth certificates for the applicant’s 2 sons

   ii.The Police Letter and Medical Letter previously submitted to the Department

   iii.The email from [Mr B] to the applicant as previously submitted to the Department with the addition of a sent date of 26 March 2019; and

   iv.A document titled ‘Warrant to Bury’ dated 6 November 2017 in relation to the applicant’s deceased sister and a ‘Cemetery Ordinance’ dated 9 November 2017 which records the date of her sister’s burial as 10 November 2017.

2. The applicant also provided information in her Tribunal Statement regarding her experiences of domestic violence in Australia involving her de-facto partner, Mr CK. Supporting police and court documents were submitted. She stated that the violence commenced from 2017 and included several incidents in early 2019 which led to her seeking assistance from the Queensland police and applying for a protection order. Mr CK was subsequently convicted in October 2020 of domestic violence related offences and sentenced to a term of imprisonment. A further incident of violence occurred in early 2023, for which Mr CK was sentenced to a further term of imprisonment. In mid-2023 the applicant applied for a variation to the protection order to allow Mr CK to have contact with her children. While the children have limited contact with Mr CK, he has been violent toward them in the past and she does not want to leave them with him if she were required to return to PNG. She also states that she struggles with ‘severe mental health issues’ because of the violence from Mr CK.  

3. On 4 February 2025 RACS provided detailed submissions and a bundle of supporting documents, as outlined below:[1]

   [1] This included the letters from Mr W and Ms Z previously provided to the Department, as detailed above

   i.Letter dated 15 January 2025 from the applicant’s father stating in summary that the applicant has experienced extreme physical and emotional abuse from [Mr B]. He would sometimes lock her in his house for several days and abuse her. She was unable to access adequate protection from local authorities or her family. He would not be able to protect her given his age and poor health condition. He and his wife have received continuous threats and harassment from [Mr B] and his tribesmen, causing them to flee to [Town 2].

   ii.Statement (undated) from the applicant’s [sister], [Ms F], who is currently residing with her husband and children in her parents’ house in Port Moresby, together with her brother and her [sisters] and their children. She states in summary that:

   a.She witnessed [Mr B]’s physical and verbal abuse of the applicant, which resulted in the applicant sustaining significant injuries and trauma. [Mr B] threatened her family when they tried to protect the applicant. This started in around 2015, soon after he followed the applicant to Port Moresby.

   b.She tried to get help for the applicant from [Organisation 2], but they could not assist. The family sought help from the police, but [Mr B] has police connections and did not protect the applicant. The only thing her father could think of to protect the applicant was to send her to Australia. The main reason they applied for a student visa for the applicant was to enable her to escape from [Mr B]. Her father funded the applicant’s travel to Australia and her school fees.

   c.Since the applicant departed PNG, [Mr B] has come several times to the family house looking for her and threatening the family. The last time he came to the house, with ‘some police guys’, was in January 2024. They were drunk and threatened to replace the applicant with another sister if the applicant did not return to him.

   d.Her father would not be able to protect the applicant if she returned to PNG. He is an ‘old man’ now and had to sell all his businesses. He is ‘living on commission’ and ‘helps out [a] [lady]’ in [Town 2]. Her parents were forced to move from Port Moresby to [Town 2] because of the threats from [Mr B] and his relatives.

   e.If the applicant returns to PNG, she could live in the family home in Port Moresby but she would not be safe there. [Mr B] would find her and her male family members would be unable to protect her. The situation would be worse now because the applicant has 2 children.    

   iii.Table of family members prepared by the applicant, including details of their name, age, marital status, current location and why they could not offer her protection from [Mr B] (the Family Table).

4. RACS submissions address the citizenship status of the second applicant, stating that pursuant to s 12(1)(a) of the Australian Citizenship Act 2007 (Citizenship Act) he is an Australian citizen by operation of law as his father, Mr CK, was an Australian permanent resident at the time of his birth. In support of Mr CK’s permanent residency status, RACS provided a letter from Mr CK dated 16 January 2025, a statement by a RACS lawyer, a copy of Mr CK’s PNG passport and a ‘Visa Entitlement Verification Online’ (VEVO) check for Mr CK. RACS state that as the second applicant is an Australian citizen by operation of law, he ‘cannot be an applicant to his mother’s protection visa application.’       

   Applicant’s oral evidence

5. Toward the commencement of the hearing, I explained to the applicant that in accordance with procedural fairness requirements under the Act, I would be raising information with her that may cause me to have concerns about the credibility of her claims regarding [Mr B]. This information comes from her oral evidence to the delegate at the protection visa interview, details of which do not appear in the delegate’s refusal decision. I emphasised that I had not made my mind up about those matters and was inviting her comments.

6. The applicant confirmed that she completed the protection visa application herself, without any assistance. She also wrote the 2021 Statement herself.

7. Regarding her oldest son, the applicant confirmed that she has not registered his birth with the PNG authorities for the purposes of obtaining PNG citizenship. Asked whether she has applied to the Department for evidence of her son’s Australian citizenship, she stated that to date she has not as it has been difficult for her to obtain information from Mr CK. The applicant’s representative indicated that RACS would be assisting the applicant to apply for evidence of the second applicant’s Australian citizenship. I explained to the applicant that, while it appears that her son is an Australian citizen by operation of law, it would be for the Department to confirm this and unless she were to withdraw her son from the Tribunal review application, I would proceed to make a decision for her and her son. The applicant indicated that she understood.

8. Regarding the year that she left East Sepik Province, I discussed with the applicant that the claim in her Tribunal Statement that she moved to [Town 1] in 2012 appears inconsistent with the certificate provided as part of the 2021 Statement which records her attendance at a primary school in [Town 1] between 2006 and 2011. It also appears inconsistent with information in her protection visa application that she attended primary school in Port Moresby between 2006 and 2011. The applicant stated that she thinks she moved to [Town 1] in 2010 and undertook 4 years of schooling in [Town 1] (the final 2 years of primary school and the first 2 years of secondary school). She is unsure why the primary school certificate contains incorrect dates. She clarified that she never attended primary school in Port Moresby and believes this to be an error in her protection visa application.

9. The applicant recalled that she first met [Mr B] in 2012, when she was almost 16 years old. At that time, she was living with her uncle and aunt in [Town 1]. For the first few months they were not aware of her relationship with [Mr B]. When they came to know of it, they did not initially tell her parents. When [Mr B] became more controlling – which the applicant indicated was about 2 or 3 months after her aunt and uncle became aware of the relationship – they told her parents.

10. I raised with the applicant that at her protection visa interview she stated that her uncle did not tell her parents about her relationship with [Mr B]. Rather, her parents came to know about the relationship via her sister, [Ms G], who was visiting [Town 1] and saw her with [Mr B]. The applicant responded that at that time her uncle knew of the relationship and told her sister, who then informed her parents.  

11. I discussed with the applicant that in her 2021 Statement she claimed that whenever she ran to her family to seek refuge from [Mr B], they would send her back saying it was part of marriage and relationships. This appears inconsistent with her evidence that her parents took steps to protect her from [Mr B], including assisting her to move from [Town 1] to Port Moresby in 2014. She agreed that her parents helped her to leave [Town 1] but said this was while her relationship with [Mr B] was still in the ‘early stages’. The reference to her family ‘sending her back’ to [Mr B] related to the period after she moved to Port Moresby.

12. Regarding the incident of 18 November 2014, the applicant agreed that the account provided in her Tribunal Statement is correct. I raised with the applicant that this account appears inconsistent with her oral evidence to the delegate that she did not go with [Mr B] in his car. Some bystanders intervened causing [Mr B] to leave and she then filed a report with the police. The applicant responded that there were many incidents involving [Mr B], but she did go with him on that occasion. She must have been confused with different dates and events when speaking to the delegate.

13. Regarding the incident of 14 March 2015, I discussed with the applicant that the account provided in her Tribunal Statement indicates that she went to the hospital for treatment on 15 March 2015, whereas the Medical Letter refers to her being admitted for treatment on 14 March 2015. The applicant responded that she went with [Mr B] on 13 March 2015, stayed overnight with him and went to the hospital the following day.

14. Asked about [Mr B]’s reaction when he learnt that she had first departed PNG in January 2016, she stated that he was angry and started making threats toward her parents. Based on what her family has told her, he was always asking where she was. She described the threats as being ‘continuous’. I raised with the applicant that she claims to have experienced several incidents of serious harm from [Mr B] prior to January 2016, applied for a student visa to Australia in order to escape from [Mr B] and was aware that he was continuously searching for her after her departure, yet she decided to return to PNG in September 2016. While acknowledging the reasons given in her Tribunal Statement, her decision to return in September 2016 may cause me to have concerns about her claims relating to [Mr B]. The applicant responded that she understood that [Mr B] would not be in Port Moresby during the time of her visit; she stayed in her parents’ house and remained ‘low key’.   

15. Regarding the claim in her Tribunal Statement that [Mr B] contacted her via [Social media] following her return to Australia in October 2016, the applicant confirmed that was correct; he asked her why she had left PNG and demanded that she return because she is his wife. She received these messages via her old [Social media] account which she can no longer access. Asked how often [Mr B] contacted her via [Social media], she referred to receiving ‘several messages’ while she was in Australia, with the last message received in 2017.  

16. I raised with the applicant that she was asked by the delegate at the protection visa interview whether she used social media, to which she stated that she had not used any social media since high school. She made no mention to the delegate of receiving messages from [Mr B] via any social media platforms. The applicant responded that she did have a [Social media] account but was not properly prepared for the protection visa interview.

17. I discussed with the applicant that, particularly given the delegate’s query as to why she would still be of interest to [Mr B], I may have concerns about her failure to tell the delegate that she had received multiple messages from [Mr B] via social media. The applicant reiterated that she was not prepared for the interview. She had no one to support her and she later realised there were many things she didn’t say to the delegate.

18. Regarding the incident of 11 November 2017, the applicant confirmed that the account provided in her Tribunal Statement is correct. I discussed with the applicant that, according to the Cemetery Ordinance submitted with her Tribunal Statement, her sister’s burial date was 10 November 2017. This is consistent with her oral evidence to the delegate where she stated that her sister’s funeral took place on 10 November 2017. The applicant stated that she finds it difficult to recalling exact dates but stated that she knows that the burial took place after the incident with [Mr B] on 11 November 2017.

19. I raised with the applicant that the account of the 11 November 2017 incident differs between her Tribunal Statement, 2021 Statement and her oral evidence to the delegate. According to her 2021 Statement, [Mr B] came to learn she was in Port Moresby 3 days after her arrival, he flew from [Town 1] to Port Moresby and came to her place of residence where he abused her. She ‘stayed hidden’ in Port Moresby for 5 days before attending her sister’s burial on the sixth day and then returned to Australia. According to her oral evidence to the delegate, [Mr B] was in [Town 2] when he learnt of her presence in Port Moresby. He flew from [Town 2] to Port Moresby and came to her parents’ house in [Location] on 11 November 2017. When her parents returned home, they called the police but [Mr B] had left by the time the police arrived.

20. The applicant responded that the incident of 11 November 2017 occurred at the morgue, not at her parents’ home. She must have been confused with other incidents involving [Mr B] as there were many incidents in addition to the 3 referenced in the Police Letter and Medical Letter. She reiterated that she was not prepared for the protection visa interview.

21. Regarding the Police Letter and Medical Letter, I noted that these were written following her final arrival in Australia and are not contemporaneous reports of the 3 incidents. Asked whether she received any police or medical reports at the time of these incidents, the applicant initially referred to a ‘medical certificate’ which she must have misplaced but indicated that she did not receive any contemporaneous reports.

22. Asked when [Mr B] came to know of her return to Australia in November 2017, she stated that it was one or 2 days after she left PNG. He went to her house to ask about her and the neighbours told him about her departure. I raised with the applicant that the email from [Mr B] dated 26 March 2019 indicates that he was not sure she was in Australia, which appears inconsistent with her evidence that he knew of this a few days after she departed. The applicant responded that she is not sure about that. I also discussed with the applicant the claims in the Family Table that [Mr B] had questioned some of her extended family members regarding her whereabouts. She agreed that he had visited her aunt in East Sepik Province to ask about her. Asked why [Mr B] would question her aunt in East Sepik Province if he knew she was in Australia, the applicant responded that he may not have been sure that she was in Australia and thought she may have escaped to her village.

23. The applicant confirmed that the 26 March 2019 email was the only email she received from [Mr B]. Asked why he would have waited for around 18 months following her final departure from PNG to email her, she responded that prior to that he thought she would be returning to PNG after she finished her studies. He emailed her after learning that she was not returning. When asked how he came to know she would not be returning, she stated that he must have learnt of it via friends or family.  

24. Regarding the ongoing threats from [Mr B] toward her family following her final departure from PNG, the applicant estimated this was occurring on a weekly basis. I raised with the applicant that at the protection visa interview the delegate asked whether [Mr B] had tried to contact her parents. In response, she referred to one occasion in 2018 where he went to her parents’ house asking about her. This appears significantly different to her evidence to the Tribunal. I also raised concerns as to why, if [Mr B] had been regularly threatening her family as claimed following her final departure from PNG, she responded to the delegate’s query about why he would continue to be interested in her by stating that she ‘didn’t know but he used to be’. The applicant reiterated that she wasn’t prepared for the interview and didn’t ‘get her stories straight’.

25. I noted that, while I have not made up my mind, I may have concerns with the credibility of her claims regarding [Mr B] and may not give weight to the supporting documents she has provided. The applicant responded that she believes [Mr B] would harm her because he considers her to be his wife and property.

26. In relation to family support in PNG, the applicant stated that her parents still own a house in [Location], Port Moresby, where several of her siblings live including one brother. Her father also owns a house in [Town 2] (subject to a mortgage), where he and her mother moved around 2 years ago. She stated this was because of the ongoing threats from [Mr B]. During her residence in Australia, her parents have visited her 3 times, including around the time of the second applicant’s birth. She stated that her father’s financial situation has deteriorated since her protection visa interview in 2019. She clarified that her father used to own several businesses in East Sepik Province but sold those when the family moved to Port Moresby in around 2012. He no longer operates his [business] and currently has a lot of debts. He had to sell the property he owned in Far North Queensland to cover payment of a bride price for her brother’s marriage. If she were to return to PNG, she will only have support from her immediate family. However, all her sisters are married and have their own issues. Due to the problems in her village in East Sepik Province, she doesn’t have wider community support.

27. I discussed with the applicant that anonymous allegations relating to her were received by the Department in early 2018. These are subject to 2 non-disclosure certificates issued by the Department under s 375A of the Act. A copy of the certificates was provided to the applicant at the hearing and RACS confirmed they had received copies from the Department via a Freedom of Information request. I outlined the gist of the allegations as detailed below and emphasised that I may not give significant weight to this information and may not consider it directly relevant to my assessment of whether the applicant engages protection obligations.

    i.It is alleged that, while holding a student visa, the applicant did not comply with the work conditions of her visa. I explained to the applicant that this is not relevant to my assessment, and I was not seeking any comment from her.

    ii.It is further alleged that Mr CK is not the biological father of the second applicant and that her father came to Australia in early 2018 to pay Mr CK to pretend to be the father of her son to obtain the benefits of his permanent residency status. I cautioned the applicant that she is not obliged to respond to questions that may incriminate her in any criminal offence. I also explained to the applicant that the only relevance of this information to my assessment is to indicate that her father supported her in 2018 and appears likely to continue to do so if she returns to PNG. The applicant was provided with an opportunity to speak with her representative in private before responding to this information. She responded that the allegation is entirely false and believes it was motivated by jealousy because of her relationship with Mr CK.    

1. The applicant agreed that if she were required to return to PNG, she would return to Port Moresby. Regarding her claims to fear harm on return to PNG as a single woman or mother, I discussed with the applicant that if I were not to accept the claims relating to [Mr B] to be credible, I may not be satisfied that she would face a real chance of harm for this reason. I  noted that her parents own a home in Port Moresby, in which several of her siblings reside, including her brother and it appears that she would have the support of her immediate family members.

2. I discussed with the applicant the second applicant’s PNG citizenship status, noting that under PNG citizenship law her son’s birth in Australia must be registered with the PNG authorities within one year of birth. Registration beyond this period can occur at the discretion of the Minister. While I accept that her son is not currently a PNG citizen, I may find that he would be able to acquire citizenship if she undertook the necessary steps.

3. The applicant’s representative requested the opportunity to provide a post-hearing written submission rather than make oral submissions, noting that RACS were previously unaware of the 2021 Statement and requested a copy. The representative stated that, if the Tribunal were to make an affirm decision, consideration be given to referring this matter for possible Ministerial intervention given the applicant’s 2 sons are Australian citizens. The representative indicated that this would be further addressed in the post-hearing submissions.  

4. A copy of the 2021 Statement and attached school certificate were provided to RACS following the hearing and a period of 2 weeks was allowed for post-hearing submissions.

   Post-hearing evidence

5. Submissions dated 20 February 2025 were provided by RACS, together with a supplementary statement by the applicant (Post-hearing Statement). Relevant information from RACS’ submissions is summarised below:

   i.Regarding the credibility concerns raised by the Tribunal, RACS acknowledge that the applicant has provided differing accounts of 2 incidents referenced in the Police Letter and Medical Letter. It is submitted that the applicant’s past experience of violence and her untreated trauma should be given significant consideration by the Tribunal in assessing credibility. It is further submitted that the inconsistencies in the applicant’s account are ‘largely limited to dates and which specific events were reported to the police’ and her overall claims to fear harm from [Mr B] have largely remained consistent. 

   ii.RACS state that the Tribunal noted during the hearing that if she were forced to return to PNG, the applicant ‘may be unable to return with her children’ as they do not currently hold PNG citizenship. It is submitted that the Tribunal should accept that the applicant would return with her 2 children and would take the necessary steps to ensure they could return with her to PNG. She would therefore be returning as a single mother of 2 children. It is submitted that the ‘risk of harm extends to her and her children’ and the risk of harm would substantially increase due to the presence of the children.

   iii.RACS state that the Tribunal ‘inferred at the hearing that the Applicant’s family would be able to protect her from [Mr B] either in Port Moresby or [Town 2]’. It is asserted that the applicant’s family would be unable to protect her from [Mr B] if she returns to her home region of Port Moresby, considering the past and ongoing attacks and threats from him.

6. Relevant information from the applicant’s Post-hearing Statement is summarised below:

   i.She has experienced violence her entire life and finds it difficult to recall the dates and order of certain events. When she was young her father had a problem with alcohol and was violent and abusive. She commonly witnessed violence in her home, community and everyday life. She has also experienced violence from [Mr B] in PNG and Mr CK while in Australia. She has not spoken to many people about this and finds it difficult to talk about. She finds it difficult to remember details of what occurred.

   ii.She has never received mental health support or counselling for the violence she experienced in PNG or Australia. Her lawyers referred her for counselling in November 2024, but she has not attended as yet.

   iii.She did not receive any legal advice when applying for her protection visa or attending the Departmental interview. She was not prepared for the type of questioning by the delegate and became stressed and anxious during the interview. She doesn’t know why she said some of things to the delegate as they were not ‘completely correct’. She panicked when responding.

   iv.Her Tribunal Statement was written by a RACS lawyer based on what she told them. The lawyer referred to certain dates in the Police Letter and Medical Letter which she assumed were correct. In fact, she does not know the exact dates for any of these events. There were many incidents that she did not report to the police or attend the hospital and has become confused with the various events.

   v.The applicant clarified the dates for her schooling in PNG. From 2004, she attended primary school (years 1 to 6) in [District 1], East Sepik. She attended her final 2 years of primary school in [Town 1] in 2010 and 2011 and her first 2 years of high school in [Town 1] in 2012 and 2013. She completed her final 2 years of high school at Port Moresby [in] [year range]. She is unsure why the primary school certificate contains incorrect dates but thinks this was an error on the part of the school. 

   vi.Regarding inconsistencies in her evidence of how her parents learnt of the relationship with [Mr B], all the various accounts are true but she can’t recall the order in which they occurred. When she first moved to Port Moresby, her parents gave [Mr B] a chance as they thought he was not as bad as she claimed and told her to ‘go back and sort it out with him’. When his behaviour got worse, they no longer told her to go back to him.

   vii.Regarding inconsistencies in her evidence of the November 2014 incident, she thinks that the incident she reported to the police in 2014 was the incident as described in her Tribunal Statement. She thinks she confused a different incident that occurred in 2014 when speaking with the delegate.

   viii.Regarding inconsistencies in her evidence of the November 2017 incident, she acknowledges that her memory of this incident has become confused. At the time, she was pregnant, and her sister had just passed away. She believes [Mr B] attacked her at the morgue on [Date 1] November 2017 and she was forced to stay at his house. She was able to get away from him to attend her sister’s burial on 10 November 2017. She reported to the police and went to the hospital several days after the incident. When she referred in the protection visa application to this incident occurring ‘in town’ she meant at the morgue which is in the town centre. She did not go to stay with her uncle in [Suburb 1] at that time, as stated to the delegate, but did go there prior to her first trip to Australia.      

   ix.Regarding inconsistencies in her evidence about the use of social media she doesn’t know why she told the delegate that she had not used social media for a long time – that is not correct. She has several social media accounts including a [Social media] account.

   x.Regarding ongoing threats by [Mr B] toward her family, she only knows what her family tell her. She doesn’t know if or when [Mr B] learnt that she was in Australia. When she said this, she was just guessing or making assumptions. She can’t recall how often [Mr B] previously threatened her family, including around the time of her protection visa interview.

   xi.If she is required to return to PNG, she would bring her 2 children with her even if that is dangerous for them. She would make the necessary arrangements to obtain citizenship for them. She would not leave them with Mr CK given the previous violence on his part.

   FINDINGS AND ASSESSMENT

7. 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 decisions under review should be affirmed.

   Criteria for protection visa

8. 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.

9. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Factual findings

10. 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 AAT Guidelines on the Assessment of Credibility[2] 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.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]

    Applicant’s claims

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

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

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

11. Based on the documentary evidence submitted, I accept that the applicant has experienced domestic violence in Australia from Mr CK. The applicant claims that this started in 2017. Although there is no documentary evidence relating to incidents in 2017 or 2018, given the subsequent violence, I accept this is plausible. I have therefore had regard to the AAT 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.

12. In considering inconsistencies arising from her oral evidence to the delegate, I have taken into account that the protection visa interview took place on 21 May 2019. A Court Brief prepared by the Queensland Police Service refers to an incident of domestic violence that took place on 18 May 2019. While the applicant did not raise this with the delegate, I acknowledge that this incident would have been traumatic for the applicant and its timing, a few days prior to her protection visa interview, could have adversely affected her ability to provide evidence.

13. In her evidence to the Tribunal, the applicant claims to suffer from severe mental health issues because of her experiences of domestic violence in PNG and Australia. She has not sought any counselling and no supporting evidence has been provided of any diagnosed mental health issues. While I accept that her experiences of domestic violence in Australia are likely to have been traumatic for the applicant, based on the available evidence, I am not able to find that she suffers from any mental health issues.  

14. I also acknowledge the applicant’s lack of representation before the Department and that official interviews relating to protection claims can be stressful for an applicant. However, as discussed below the inconsistencies in her evidence are not limited to her oral evidence to the delegate and I am not satisfied that the above factors overcome my significant credibility concerns.

15. I also acknowledge that country information is generally supportive of the applicant’s claims to have experienced gender-based violence in PNG. Sources indicate that PNG has amongst the highest rates of gender-based violence in the world.[5] 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.[6] According to a report by the US Department of State, gender-based violence, including sexual violence 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 is seldom enforced and is generally committed with impunity.[7] 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.[8]

    [5] 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;

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

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

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

16. However, I have significant concerns with key aspects of the applicant’s claims relating to [Mr B]. As outlined above, there are various inconsistencies, omissions, and implausible aspects in her account. RACS submit that the applicant’s account has remained overall consistent, and any inconsistencies are largely limited to dates and which particular events were reported to the police. For the reasons below, I do not accept that to be the case.

17. I have given no weight to the allegations received by the Department in 2018. The allegations that the applicant was in breach of work conditions on her student visa and that Mr CK is not the biological father of the second applicant are not relevant to my assessment. I have given no weight to the allegation that the applicant’s father came to Australia in 2018 to pay Mr CK to falsely present himself as the second applicant’s father. There is no credible information before me as to how the author is aware of this information or the basis for this assertion. Based on the applicant’s evidence to the Tribunal, I accept that her parents visited her on 3 occasions in Australia, including around the time of the birth of the second applicant. 

18. I have given no adverse weight to minor inconsistencies regarding dates and timeframes. I acknowledge that with the lapse of time it is difficult to recall exact dates or even sequences of events. I accept the applicant’s evidence to the Tribunal regarding the period that she resided and undertook primary and secondary schooling in [Town 1] and have given no adverse weight to the dates in the primary school certificate submitted as part of the 2021 Statement. I have given no adverse weight to inconsistencies in the applicant’s evidence of the timeframe of her relationship with [Mr B] and how her family came to learn of it.

19. I have given adverse weight to the following issues which I find in totality to significantly undermine the credibility of her claims:

    i.In her 2021 Statement, which the applicant confirmed to the Tribunal she wrote herself, the applicant claimed that her family were of no help because they had been ‘silenced’ by money and compensation from [Mr B] and when she tried to seek refuge with them, they would send her back to [Mr B]. I find this to be significantly inconsistent with her evidence to the Department and Tribunal that her parents did not agree with the relationship with [Mr B] and supported her in moving from [Town 1] to Port Moresby in 2014 to get away from [Mr B]. In her protection visa application, which the applicant confirmed to the Tribunal she wrote herself, she stated that her father strongly disagreed with the relationship and told her to cease all contact with [Mr B]. I have considered her response to the Tribunal that she was referring to the actions of her family in the period shortly after she left [Town 1]. However, I do not find this explanation to overcome my concerns.

    ii.The applicant has provided substantially differing accounts of the claimed incident in November 2014. In her oral evidence to the delegate, she stated that she did not go with [Mr B] in his car; he left after some bystanders intervened. In her Tribunal Statement, she claimed that she was forced to go with [Mr B] in his car and stayed overnight with him. I have had regard to her response to the Tribunal that there were many incidents involving [Mr B] such that she was confused with dates and events and was not adequately prepared for the interview. However, it was clear from listening to the audio recording of the protection visa interview that the delegate’s questioning related specifically to the 3 incidents referenced in the Police Letter and Medical Letter, copies of which were submitted by the applicant to the Department. She confirmed to the Tribunal that these were the only 3 incidents that she reported to the police in person. In these circumstances, I find it reasonable to expect that she would recall whether she went with [Mr B] and stayed overnight with him or not.

    iii.The applicant has provided substantially differing accounts in her protection visa application, oral evidence to the delegate, 2021 Statement, Tribunal Statement, oral evidence to the Tribunal and Post-hearing Statement regarding the claimed incident in November 2017. As outlined above, these discrepancies relate to the date of the incident ([Date 1] or 11 November 2017), the location of the incident (in town, at her parents’ house or at the morgue), whether or not she went with [Mr B] and stayed overnight with him and whether she subsequently remained in her family home or went to stay with her uncle in [Suburb 1]. I have had regard to her explanations to the Tribunal for these inconsistencies. I accept that her sister had recently passed away and the applicant was pregnant at the time of these events. However, I am not satisfied that these factors adequately explain inconsistencies of this nature and extent.

    iv.The applicant has provided substantially inconsistent evidence regarding social media contact from [Mr B] while residing in Australia. In her oral evidence to the delegate, she claimed that she did not use any social media and made no mention of receiving any [Social media] messages from [Mr B]. In her evidence to the Tribunal, she claimed to have received several [Social media] messages from [Mr B] while in Australia. I do not find her explanation to the Tribunal for this inconsistency to adequately address my concerns.

    v.I find the threatening email from [Mr B] dated 26 March 2019 to be lacking in credibility. Firstly, I have concerns regarding the timing of this email – approximately 2 months prior to her protection visa interview and 18 months after her final departure from PNG. The applicant claims that [Mr B] was continuously seeking her whereabouts following her final departure in November 2017, yet this was the first and only email he sent her. The content of the email suggests that [Mr B] was unsure whether she was in Australia, yet the applicant stated to the Tribunal that he came to know of her return to Australia a few days after she departed. In the circumstances I have given no weight to this document.

    vi.The applicant claims to have filed reports with the police and attended the Port Moresby General Hospital following the incidents of violence in 2014, 2015 and 2017 and has provided the Police Letter and Medical Letter as supporting evidence. As outlined above, these documents are dated from early 2018 and do not comprise contemporaneous records of these incidents. Considering my overall credibility concerns, I have given no weight to these documents.

    vii.I find the applicant’s return to PNG between September and October 2016 to be of significant concern given her evidence that she left PNG in January 2016 in order to escape serious physical violence from [Mr B] and was aware that he had continued to regularly ask about her and threaten her family in PNG. I acknowledge her responses to the Tribunal for her decision to return during this period and why she felt it would be safe for her to do so. However, I do not find these explanations to be convincing if she was genuinely being targeted by [Mr B] as claimed.

    viii.I find the applicant’s evidence to the Tribunal regarding ongoing threats from [Mr B] toward her family in PNG to be inconsistent with her evidence to the delegate. She stated to the Tribunal that her family were being threatened by [Mr B] on a regular basis – estimated as weekly – such that her parents decided to leave Port Moresby for [Town 2] around 2 years ago. In her oral evidence to the delegate, she referred to one occasion in 2018 where [Mr B] had gone to her parents’ home to ask about her and when specifically asked why she thought he would continue to have an interest in her she responded that she didn’t know but he used to. If her family was genuinely being threatened as claimed, I would expect the applicant to have raised this with the delegate. I do not find the applicant’s explanations to the Tribunal for these issues to adequately address my concerns.       

1. I have considered the remaining supporting documentary evidence submitted regarding violence from [Mr B], as outlined above. However, considering the above credibility concerns I have given these documents no weight.  

2. Considering the above, I do not accept any of the applicant’s claims regarding harm from [Mr B] to be credible. I do not accept that the applicant or her family members have been subjected to any harm or threats of harm from [Mr B] during her residence in PNG or Australia. While I accept that her parents moved from Port Moresby to [Town 2] several years ago, considering the above findings I do not accept that this was due to threats or harassment from [Mr B].  

3. In her Post-hearing statement, the applicant raised for the first time that during her childhood her father had alcohol problems and was violent and abusive. While acknowledging the sensitive nature of this information, I have significant concerns about the late disclosure of these claims which were raised in the context of addressing the credibility concerns discussed during the Tribunal hearing. The applicant made no mention of this when given the opportunity to comment on inconsistencies and other concerns during the hearing.

4. Her evidence to both the Department and Tribunal has otherwise consistently indicated that her father was supportive and protective of her. For example, in her Tribunal Statement she claimed that her father assisted her to move to Port Moresby in 2014 as he believes in women’s independence and was supportive of her ongoing studies. She has consistently stated that her father financially supported her to travel to Australia as a student and indicated to the Tribunal that her parents came to Australia to visit her on 3 occasions, including around the time of the second applicant’s birth.   

5. Considering the above, I do not accept that her father was violent and abusive, including during the applicant’s childhood.

6. I am prepared to accept the applicant’s claim that her father’s financial situation has deteriorated, that he has debts and no longer owns businesses in East Sepik Province or operates his own [business].

   Second applicant’s citizenship status

7. As outlined above, it appears from the available evidence that the second applicant is an Australian citizen by operation of law on the basis of Mr CK’s permanent resident status. However, the applicant confirmed that she has not to date applied to the Department for evidence of her son’s Australian citizenship under s 37 of the Citizenship Act and I am not able to make a finding regarding this matter. As discussed above, the second applicant remains included in the review application.

8. Regarding the second applicant’s PNG citizenship, I accept that the applicant has not to date registered his birth with the PNG authorities. According to the PNG Constitution, a child born outside PNG to a parent who is a PNG citizen is eligible for PNG citizenship by descent if the child’s birth is registered ‘as prescribed’.[9] Under the PNG Citizenship Act 1975, the registration of a birth overseas ‘may be made by giving to a person appointed by the Minister the prescribed particulars’ and ‘the registration shall be made within one year after the birth or, with the consent of the Minister, at any time after the end of that period’.[10] PNG’s Citizenship Regulation 1975 prescribes the application form for registration of a birth overseas.[11] According to the PNG Immigration & Citizenship Service Authority:

   This form is for PNG Citizens seeking to register the overseas birth of their child for the purposes of Citizenship. This must be undertaken within 12 months of the child’s birth… Note - the Minister may allow applications to be made after 12 months from the date of birth of the child (Citizenship Act, Section 5(2)). If you seek to access this provision for an overseas born child aged older than 12 months but younger than 18 years, attach a detailed statement of facts and reasons why you wish this discretion to be exercised to this application form.[12]

   [9] Constitution of Papua New Guinea 1975: s 66, PNG Office of Legislative Counsel, available on Constitute website

   [10] Citizenship (Amendment) Act 1996 (No. 6 of 1996)], PNG Office of Legislative Counsel, available on Pacific Islands Legal Information Institute (PacLII) website

   [11] Citizenship Regulation 1975, PNG Office of Legislative Counsel, available on Pacific Islands Legal Information Institute (PacLII) website

   [12] PNG Immigration & Citizenship Service Authority (ICSA), Form C1. Registration of Overseas Birth, available on PNG ICSA website

9. RACS’ post-hearing submissions assert that the Tribunal suggested that the applicant may be unable to return to PNG with her children as they do not currently hold PNG citizenship. As outlined above, that does not accurately reflect the Tribunal’s statements at the hearing. Considering the above information, I find that it is open to the applicant to apply for PNG citizenship by descent for the second applicant and seek the exercise of the Minister’s discretion to allow the registration application to be made outside the 12-month period.

10. In the post-hearing evidence, the applicant confirmed that if required to return to PNG she would take all necessary steps to obtain PNG citizenship for her children so they could accompany her. I accept that to be the case and there is no information before me to indicate that the Minister would decline to exercise his discretion to register the second applicant’s birth outside the 12-month period. While I accept that the second applicant is not currently a citizen of PNG, I find that he is eligible for citizenship by descent.    

11. I accept that the second applicant would, if required, accompany the applicant on return to PNG and in the circumstances find his receiving country for the purposes of assessing his protection claims to be PNG.  

    Refugee and complementary protection assessment

12. The applicant confirmed to the Tribunal that if she was required to return to PNG, she would return to Port Moresby where her parents own a house in which several of her siblings reside. As above, I accept that she would be returning to Port Moresby as a single mother of 2 male children.

13. Given my findings above, I am not satisfied that there is a real chance that the applicant or second applicant would face any harm from [Mr B] in Port Moresby. It is therefore not necessary to consider whether her family would be able to offer them any protection from [Mr B].

14. I have considered whether there is a real chance that the applicant, in her accepted circumstances, would face harm in Port Moresby as a single woman or single mother. I acknowledge the country information discussed above regarding the prevalence of gender-based violence in PNG. I also acknowledge that PNG is a patriarchal society, where women are traditionally dependent on a male partner or guardian for their economic and physical security.[13]

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

15. Based on the available evidence, I find that the applicant would return to her family home in [Location], where she would have the support of several siblings, including one brother, and her brother-in-law (husband of her sister, [Ms F]). While I have accepted that her parents currently reside in [Town 2] and her father’s financial situation has deteriorated, I find that she would continue to have some degree of support from her parents on return.

16. The applicant completed her secondary schooling at Port Moresby [and] has undertaken some tertiary studies in Australia. According to her evidence to the Tribunal, she has been employed in [work] sector in Australia. Other than the claimed harm from [Mr B] and childhood violence from her father, neither of which I have accepted as credible, the applicant has not claimed to have personally experienced any other incidents of violence in PNG. She has not claimed to fear harm from any specific person in PNG other than [Mr B].    

17. In the applicant’s particular circumstances, I am not satisfied there is a real chance that she will face serious harm as a single woman or single mother in the reasonably foreseeable future if she were to return to Port Moresby. I accept that in PNG’s patriarchal society with inequitable gender norms,[14] there is a real chance that she will experience gender-based discrimination. However, in the applicant’s circumstances, I do not find this to reach the threshold of serious harm, examples of which are outlined in s 5J(5) of the Act. 

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

18. I find that the applicants do not have a well-founded fear of persecution and are not refugees as defined in s 5H(1) of the Act.

19. I have therefore considered the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ removal from Australia to PNG, they will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

20. The ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[15] For the same reasons outlined above, I find there to be no real risk of the applicants suffering significant harm from [Mr B] as a necessary and foreseeable consequence of their return to PNG.

    [15] MIAC v SZQRB (2013) 210 FCR 505

21. Considering my reasoning above, I find there to be no real risk that, as a necessary and foreseeable consequence of her removal to PNG, the applicant will suffer significant harm as defined in s 36(2A) as a single woman or single mother. As above, while I acknowledge that the applicant faces a real risk of gender-based discrimination, I am not satisfied that this amounts to any of the types of significant harm defined in s 36(2A).  

22. The applicants have not raised any other claims to fear harm in PNG and I find that none arise on the accepted facts.

    Conclusions

23. For the reasons given above the Tribunal is not satisfied that either of the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

24. RACS indicated at the Tribunal hearing that they may request referral of this case for possible Ministerial intervention on the basis that the applicant has 2 Australian citizen children. No reference to Ministerial intervention was made in the Post-hearing evidence. Considering the submissions that the applicant would return to PNG with her 2 children, I understand that the applicant is not requesting referral by the Tribunal to the Minister.

    DECISION

25. The Tribunal affirms the decisions not to grant the applicants protection visas.

    Hearing date: 5 February 2025

    Representative:  Ms Sophie Roden

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …

    
    

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