2206453 (Refugee)
[2025] ARTA 2168
•15 August 2025
2206453 (REFUGEE) [2025] ARTA 2168 (15 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2206453
Tribunal:Clyde Cosentino
Date:15 August 2025
Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 15 August 2025 at 11:44am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social groups – single woman subject to family abuse and violence and without male protection – accidental death of husband by customary marriage attributed to member of applicant’s tribe – verbal, physical and sexual abuse and demands to marry by brother-in-law – family’s denial of responsibility after paying bride price – found after relocating – police expectations of bribery – supporting statements from family and tribal and church leaders – country information – widespread gender-based violence – wantok system and inadequate state protection – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(b), (4), 5L, 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2CASE
Chan Yee Kin v MIEA [1989] HCA 62Any 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 on 13 April 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Papua New Guinea, applied for the visa on 2 September 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
On 3 May 2022, the applicant lodged an application for review with the former Administrative Appeals Tribunal (AAT). 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), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal on 18 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
The applicant was represented in relation to the review.
CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa application – lodged 2 September 2020
The applicant provided the following information in her protection visa application:
·The applicant was born in [Town], Western Highlands Province, Papua New Guinea. She was [Age] years old at the time of lodgement of her protection visa application.
·She resided for a substantial period of time in [Town], Western Highlands, Papua New Guinea (PNG).
·She arrived in Australia on a “Visitor” visa [in] August 2020.
·She is a Papua New Guinea citizen by birth.
·She has two children, a daughter born in [Year], and a son born in [Year].
The applicant gives reasons why she cannot return to PNG. Her claims are outlined below.
·In response to the question of why she left her country, she claims:
I, [the applicant], a single mother of two children, have been married to the deceased partner [Mr A] for seven years. My marriage has been of ceremonial initiative according to traditional customs.
Since then, for 12 years, I have been verbally abused and demanded forceful marriage by my in-law, who believes my adherence to becoming his concubine would settle the void and thus [fulfill] legal obligations of marrying [my] in-law.
Traditional bridal ceremonies in PNG regional highlands seemed the core and determining factor in settling a marriage, a family, and related social issues. In this regard, I was multiple times harassed, verbally abused, and threatened through even demanded by my in-law, who deliberately intended to marry me.
I believe it's morally, and by virtue, it's wrong and thus against my wish to demand a marriage of a deceased partner. I lived in fear for 12 years from my in law abusive actions/ intentions.
·She claims that she has experienced harm in her country.
·She claims that she sought help within her country. She claims:
[I reported] to the near police station regarding [threats] and abuse by the in-law. However, the police want[ed] bribery to respond to the matter [and] I walked away without gaining any help.
·In response to whether the applicant moved, or tried to move to another part of the country to seek safety, she claims:
I made several attempts to live in other parts of the country, however, the in-law decided to meet me. [There is no] law[ful] place to hide in PNG when men think they are superior [to] women.
·In response to what she thinks will happen to her if she returns to her country, she claims:
I am very against such forceful marriage arrangement done traditionally and instead would rather be a voice and hope to fellow women, folks, especially in the … regional highlands of PNG.
It's frustrating for me as my in-law is taking advantage of my situation and deliberately forcefully determining my life. I believe that if I return, he will murder me for not obeying traditional obligation, which is no longer existing.
I am now seeking liberty and refuge from the Australia government, whereby human rights and respect for a woman are of paramount significance. I am confident and undoubtedly believe that I would be respected as a mother and a human with fairness and dignity
·The applicant believes that she will be harmed if she returns. She claims:
For the reasons stated above, I will be mistreated and mostly murder[ed] for not accepting … their false beliefs.
·In response to whether the authorities of her country can and will protect her if she returns, she claims:
Security and safety are not guaranteed for vulnerable women like me. The [authorities have] different motives in their approaches as they demand money to solve such a problem. It is hard to imagine a honest authority to stand for women who cannot stand and fight for themselves.
·In response to whether the applicant thinks she can relocate within her country to an area where she would not be harmed, she claims that she cannot. She claims:
In PNG, man will satisfy until they harm the woman who tries to seek refuge from other provinces. I have seen women being killed by the men who try to escape or relocate. I have that fear imprinted as a victim for the last 12 years.
Departmental interview – 25 November 2021
The applicant attended an interview with the delegate on 25 November 2021 relating to her claims for protection which the Tribunal has had regard to.
Delegate’s decision
The Tribunal has read the delegate’s decision and notes, in particular, the delegate’s findings about the applicant’s ‘family network’ and ‘claims of harm by her in-laws’ as follows:
“Family network
The applicant claims she was born in [Town], Western Highlands. She was customarily married to [Mr A] in 2003. After their marriage, she lived in [Mr A]’s village with him and later their children, [Ms B] and [Mr C]. The applicant’s elderly father lives in her home village, who runs a small [workplace]. He supports himself and the applicant’s children with the income from his [workplace]. She spoke about her [siblings], who she rarely contacts, because they live in different areas of Papua New Guinea. She also spoke about moving to Port Moresby in 2013 to live with her cousin until she came to Australia in 2020. Her cousin invited her to Port Moresby because of her situation. He paid for her airfare and supported her in Port Moresby, including allocating a taxi to drive her to and from work. The applicant was forthcoming in her responses regarding her family members in Papua New Guinea and could answer questions asked about them, I am satisfied the applicant’s family composition is as described.
According to DFAT Country Information Report, ‘Wantokism’ is a system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society. Wantokism affects most aspects of contemporary life in PNG, including in business and government. In the Tok Pisin language, Wantok means ‘One Talk’, referring to the language of the tribe or clan to which a person belongs. In a tribal-based society such as PNG, the overall welfare of the tribe and its members is paramount. Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures that those members of the tribe less able to look after themselves are supported.[1]
[1][1] DFAT Country Information Report PNG', Department of Foreign Affairs and Trade (DFAT), 10 February 2017, p.17
By one recent assessment, the network of reciprocal obligations ‘based mostly on ethnic, language, tribal or clan identity (so-called “wantok” system)’ is commonly considered (with little empirical data) to provide the most important source of social capital, social trust and cooperation within (but not across) social groups in PNG, although it often places considerable financial and social responsibilities of some individuals. Traditionally, wantok relationships provided some safety net for the elderly, widowed and disabled. Today, migrants to urban centers are likely to depend on wantok for accommodation and support, a possible significant burden on low wage-earners. Organizations like NGOs, church groups, youth and women’s organizations and trade unions, forming “horizontal ties” cutting across and bridging kinship lines, are considered less relevant sources of social capital than the wantok system.[2]
Based on the applicant’s testimony and country information, I find the applicant’s description of her family circumstances indicates a strong family kinship and wantokism. I find the applicant has been a part of a wantok and enjoys the benefit of a wantok.
Claims of harm by her in-laws
In her written statement and at the interview, the applicant detailed her experience of verbal and physical violence at the hands of her in-laws after [Mr A]’s accidental death in 2008, including being beat during his funeral because they blamed her for his death. She further explained that because [Mr A] died in an accident that involved her father’s tribesmen, which made it extremely difficult for her tribe to step in and assist her. She spoke about instances of physical and sexual abuse by her late husband’s older brother, [Mr D]. She described her escape from [Mr A]’s village, with the assistance of a local pastor. In support of her claims here, the applicant provided support letters from the tribe councillors and the district Bishop. She also provided a death certificate of her late husband, [Mr A].
Australia’s Department of Foreign Affairs and Trade (DFAT) notes that levels of violent crime against women are extremely high across Papua New Guinea (PNG), and domestic violence is particularly endemic. DFAT also notes that the precise number of women who experience violence at the hands of a partner or family member is unknown:
‘Statistics are unreliable, and there is a social stigma in PNG about reporting. Human Rights Watch (HRW) published a report on family violence in PNG in November 2015 that found that the problem continued to be pervasive throughout the country. An earlier survey, published in 2013, found that 80 per cent of men in Bougainville reported that they had perpetrated physical and/or sexual violence against a partner.’[3]
Country information notes that Papua New Guinea is one of few places in the world where violence against women is normal. Statistics from the PNG National Department of Health note that, 68 per cent of women have experienced physical or sexual violence, one third were subjected to rape and 17 per cent of sexual abuse involved girls between the ages 13 and 14. Some qualitative surveys show that in some highland regions, almost all women (98 per cent) report being sexually abused. Medicins Sans Frontieres claim that they are dealing with levels normally only experienced in war zones.[4]
I find the applicant’s testimony during the interview is consistent with her written statement. She was able to plausibly elaborate upon the claims made in her statement and answer questions asked. Overall, on the basis of her consistent narrative and the country information before me. I find the applicant is generally credible regarding circumstances around [Mr A]’s death and her experience of abuse after his death. I accept the applicant suffered violence at the hands of her in-laws after [Mr A]’s death in 2008. I also accept the applicant was physically and sexually abused by her brother-in-law before her escape from [Mr A]’s village. I find the applicant has a subjective fear of harm by her in-laws, especially [Mr D].”
[2] '[Bertelsmann Stiftung’s Transformation Index.] BTI 2018 Country Report. Papua New Guinea', Bertelsmann Stiftung, p.26, CIS7B83941543 (as cited in delegate’s decision)
[3] DFAT Country Information Report Papua New Guinea’, Department of Foreign Affairs and Trade, 10 February 2017, p.17
[4] Crying Meri: Violence against women in Papua New Guinea', Vlad Sokhin, 01 January 2014, CIS27336 (as cited in delegate’s decision)
The delegate made their own findings on the evidence at the time, that the applicant’s encounter with [Mr D] in 2018 was incidental rather than targeted, that the applicant sought out, and was offered police assistance after their encounter, that [Mr D] was arrested for three days, and that the applicant remained in Port Moresby with no incidents after [Mr D]’s release. The delegate found that “the applicant has had the benefit of a wantok and if required, would have the protection of the authorities”.
On 2 December 2021, the applicant’s representative provided the following post-interview material in support of the applicant’s protection visa application:
a.Statement from [Mr E], Councillor of [Tribe 1] dated 4 September 2008, attesting to the death of the applicant’s husband (who was from [Tribe 1]) in a car accident and the assault on the applicant from [Mr D], the brother of the applicant’s late husband.
b.Statement from [Bishop F], dated 10 August 2008, stating that he is aware of the assaults on the applicant by [Mr D], and [Mr D]’s claim over her as his wife given the bride price paid to her family by [Mr D]’s family at the time of her marriage to his brother.
c.“Medical Certificate of Death” from [Hospital] confirming the applicant’s husband’s death [in] May 2008.
d.Statement from [Mr G] dated 10 September 2008, Councillor of [Tribe 2], attesting to assaults occasioning body harm to the applicant (who is from [Tribe 2]) from [Mr D].
e.Letter dated 22 February 2021 from the headmaster of [Primary school] relating to the applicant’s children.
f.Legal submissions dated 2 December 2021.
Evidence before the Tribunal
Evidence provided prior to hearing
On 10 June 2025, the applicant’s representative provided legal submissions in support of the applicant’s application for review. The Tribunal has had regard to those submissions and in particular to the following submission:
As the Delegate raised in the Decision, the wantok system underpins PNG’s society and culture. As described in the Department of Foreign Affairs and Trade’s (DFAT) most recent report regarding PNG [5]:
[5] DFAT ‘Country Information Report Papua New Guinea’ (6 September 2022)
“In PNG, the overall welfare of the tribe and its members is paramount. Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures those members of the tribe less able to look after themselves are supported”
Whilst we acknowledge the social kinship system in PNG of ‘wantokism’, it is submitted that [the applicant] will not be protected within this system.
After experiencing months of abuse from [Mr D] and other members of the community, [the applicant] fled to her father’s village in [Village]. She knew that if she stayed in [Village], neither [Mr D] nor others within the community would not be able to get to her. [Mr D]’s tribe had made accusations against [Village] over [Mr A]’s death. As [the applicant] describes in her Statutory Declaration, in PNG if you go to another tribe’s territory you are declaring war on this tribe. That tribe becomes your enemy. They didn’t want to create a war, so they didn’t go in my tribe’s territory.
When she arrived at the village, her tribe was not happy with her because she shouldn’t have returned to her home village since the bride price had been paid. She was allowed to live in the village between 2008 and 2013, but the village took no responsibility for her. Meaning [the applicant] was not under the care of the wantok system for this period of time.
Although the wantok system, through kinship ties and social bonds, provides informal and limited social protection, it is submitted that following [the applicant]’s marriage, she no longer belongs to her father’s tribe. Through customary marriage, a woman’s rights and securities within the wantok system are given over to her husband and his tribe.
It is on this basis that we submit the Delegate fell into error in concluding that [the applicant] would be able to seek the protection within her tribal community through the wantok system. What the Delegate failed to appreciate when coming to this conclusion was that [the applicant] no longer belonged to her father’s tribe, and the [Village] no longer had any cultural responsibility for [the applicant].
We note [the applicant] was unable to leave the [Village], because if she did [Mr D] would be able to get to her. [the applicant] instructs that her father’s village is small, it does not have shops or schools or medical facilities. That is why [the applicant] describes her life in the village like living as a prisoner. When the [Village] paid compensation for [Mr A]’s death, [the applicant]’s situation became all the more precarious, she was living in fear for this period of time.
Her cousin came to the village in 2013, after seeing that she had no life in her father’s village he offered to look after her in Port Moresby. [The applicant] enjoyed the protection of her cousin up until 2018 when [Mr D] located her. After this incident [the applicant] saved her money to leave PNG. She knew she was no longer safe, because [Mr D] knew how to find her. We note, if [the applicant] were to return to PNG, her cousin is not in a position to look after her.
DFAT reports that the wantok system is weakening, as many people are being pushed back into poverty. While we accept that [the applicant] was supported by her cousin in the past, we emphasise that with the decline in her cousin’s business and competing financial responsibilities, it is impossible for her cousin to care for her if returned.
Without the cultural responsibility over [the applicant], her family would be both unable and unwilling to look after her. In recent years, according to DFAT many families in PNG have fallen deeper into poverty:
“According to a measure of poverty used by the World Bank, 85 per cent of the people of PNG are considered poor, due to their lack of disposable income, low level of educational attainment and low level of access to electricity. Only about 15 per cent of PNG residents have reliable access to electricity, among the lowest level in the world.”
It is for these reasons that we submit that [the applicant] will not have the sufficient familial supports if returned to PNG.
The applicant’s representative provided a Commonwealth Statutory Declaration (Statutory Declaration) of [the applicant] dated 10 June 2025 (78 paragraphs), which the Tribunal has read. The Tribunal notes in the Statutory Declaration (and the applicant’s representative’s submissions that followed referring to the Statutory Declaration) that, after the death of her husband ([Mr A]), the applicant escaped from [Mr A]’s village, with her children, and fled to her father’s village, [Village], [Town]. She remained there from 2008 to 2013. Her father’s village took no “responsibility” of the applicant during this time given that the bride price remained and that the “rights and securities” over her had been handed to [Mr A] and his family tribe in their village, as a result of this bride price. It was submitted that [Village] no longer had cultural responsibility for the applicant. In 2013, her cousin took responsibility for her and brought her to Port Moresby to keep her safe. Her children joined her in 2015 or 2016. She remained in Port Moresby until she came to Australia. However, [Mr D] discovered where she lived in Port Moresby. The applicant lived in fear while in Port Moresby and relied, temporarily, on the protection of her cousin at the time.
The applicant’s representative indicated in their 10 June 2025 submission that they sought to rely on additional material (not before the delegate) in support of the applicant’s review application. The Tribunal has had regard to this material outlined below:
·Letter of [Dr H], [Health services provider], 13 February 2025
·Letter of [Ms I], [Organisation], 7 May 2025
·Supporting Statement of [Ms J], [the applicant]’s sister, 27 May 2025
·Supporting Statement of [Ms B], [the applicant]’s daughter, 16 April 2025 alongside video attachment
·Supporting Statement of [Mr K], [the applicant]’s cousin, 2 June 2025
·Transcription of video attachment to [Ms B]’s statement, 1 May 2025
·Translation of message received by applicant from [Ms L], 1 May 2025
·Translation of message received by applicant from [Mr C],1 May 2025
Evidence before the Tribunal
Tribunal hearing – 18 June 2025
A summary of the hearing is as follows:
·The Tribunal discussed with the applicant which witnesses she wanted to speak at the hearing. The applicant stated that, if the Tribunal thought it necessary, she would like [Ms J], her elder sister, and [Ms A], her daughter, to give oral evidence by telephone from Papua New Guinea. The Tribunal asked whether their written statements received by the Tribunal had been sent from Papua New Guinea. She stated they had. Her representative confirmed that the signed statements from the two witnesses had been brought to the applicant’s attention before they were submitted to the Tribunal. The Tribunal indicated that it would inform the applicant later in the hearing if they were required to give oral evidence.
·The applicant stated that she last lived with her cousin in Port Moresby before coming to Australia. She had stayed there for six to seven years.
·She stated that she cannot return to stay with her cousin in Port Moresby as her cousin had moved away after her business shut down during Covid-19 period.
·She stated that she cannot return to [Town]. [Town] is where her brother-in-law, [Mr D], lives. [Mr D]’s family live there as well. The family of her deceased husband, [Mr A], are a large family, consisting of a number of [Mr A]’s brothers, their male children and extended family members. [Mr D]’s family is from [Province]. [Province] province is now split from [Town] province.
·After [Mr A] died, she went to stay in [Village] in [Town].
·Her problems started in her husband’s village where [Mr D] lives. She then went back to her father’s village. She had no freedom there. She was afraid of [Mr D] and his family and what they might do to her since [Mr A]’s death and since [Mr D] and his family declared that she was now [Mr D]’s wife because of the bride price paid. [Mr D] said that he would kill her if she resisted the marriage.
·When her cousin from Port Moresby visited her and took her back to Port Moresby with her to look after her.
·[Mr D], however, ended up finding the applicant in Port Moresby. [Mr D] did not know where her cousin lived in Port Moresby, but someone told him where she worked in Port Moresby, and he found her there.
·A bride price was paid by [Mr A]’s family when he was alive. When [Mr A] died, the bride price still existed. She stated that when women marry, all the husband’s family members contribute to the bride price. This is what happened when she married [Mr A]. That is why [Mr D] told the applicant that she is now his wife. Therefore, when the family pay a bride price, they “own” the bride and can have her as theirs. Because [Mr A] died in a car accident which involved her family members, they argued that the bride price remains and that she still belongs to their family. They customarily believe that the bride price continues. This is why they have stated that the applicant now belongs to [Mr D], [Mr A]’s brother.
·The bride price was 10,000 kina, 30 pigs and food and other items at the time. This amount was substantial at the time it was given.
·She stated that if [Mr A] was still alive and she left him, her family would pay it back. But because [Mr A] died, the bride price remains in place. Therefore, she cannot go anywhere. Because [Mr A] died, and because they blamed her family for his death, [Mr A]’s family have stated the applicant still belongs to them which is why they have control over her.
·She stated that if [Mr A] had not died while he was “with her family”, they would not have a claim over her. She stated that, because [Mr A] was with the applicant’s family and cousins when he died, [Mr A]’s family have blamed her family for his death and therefore have claimed that she belongs to them. If her family were not involved in the accident when her husband died, then they would not be claiming her.
·She stated that, since the death of [Mr A], there has not been good relations between her in-laws and her family.
·She stated that there has been no contact with the two families since the death of [Mr A]. [Mr D] has threatened the applicant that he will if she does not marry him. She has only one brother and one sister. It is almost impossible to return the bride price given that she has no family members who could do it.
·Her cousin, [Mr K], who used to live in Port Moresby now lives in [Town]. The applicant has no more contacts in Port Moresby.
·She has not remarried in Papua New Guinea.
·She has two children. Her son lives in [Town] and her daughter is looking after her father in [Village]. Her mother has passed away.
·When asked what she thought would happen to her if she was to return in the reasonably foreseeable future, she stated that, if she was to return, she has nowhere safe to go to. If she goes back to [Town], she will not have any freedom because you would continue to live in fear of what [Mr D] and his family might do to her.
·Submissions were then made by her representative. The applicant’s representative spoke about the significance of the bride price and how it impacted on the applicant’s life, given that [Mr A]’s family now sees the applicant as belonging to their family given the circumstances of [Mr A]’s death and that [Mr A]’s family blame the applicant’s family for the death of their kin. She was happy to provide further post-hearing submissions on this issue to help the Tribunal better understand it. The Tribunal agreed that post-hearing submissions would be helpful and indicated that a timeframe would be discussed at the end of the hearing to present post-hearing submissions.
·The applicant’s representative also made oral submission as to why the applicant cannot go back to her family village, [Mr A]’s village or to Port Moresby. In particular, she has no one left in Port Moresby who is related to her. They have all moved on. It is therefore not reasonable or safe for her to return there. The Tribunal also asked if she could summarise why she cannot safely return to these areas in her post-hearing written submissions.
·The Tribunal asked the applicant if there was anything else she would like to say in support of her claims. She stated that once a woman from Papua New Guinea is married there, she is deemed to be the property of her husband. When her husband died, she took her son and ran away. At this current time her son is displaced, and he has no place to go to. Her son does not have a place to reside at in his father’s village (the village of her husband) nor in her father’s village.
·If she goes back to Papua New Guinea, she cannot go back to her father’s place as she was sent out when she married. She also does not have an education, and she will not be able to find work. She wanted the Tribunal to know that she does not have a place to go back to.
·The Tribunal gave the applicant further time to provide post-hearing submissions. submissions.
Post-hearing material
The applicant’s representative provided further submissions to the Tribunal dated 26 June 2025. The Tribunal has considered those submissions and to the independent country information and evidence in support of the further submissions and cited as footnotes in those submissions.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Assessment and findings relating to the evidence
The issue in this case is whether the applicant engaged 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, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
In the decision record, the delegate accepted from the evidence before it that the applicant was a citizen of PNG. As there is no evidence before the Tribunal to the contrary, the Tribunal finds that the applicant is a citizen of PNG, and that PNG is her receiving country for the purposes of assessing her claims for protection.
The Tribunal has had regard to the significant amount of evidence provided by the applicant in support of her review, including substantial evidence that was not before the delegate originally. It found the applicant to be a credible witness given the consistency of her oral evidence with witness statements (both at the time of application and at the time of her review application), her statutory declaration dated 10 June 2025, and the legal submissions made on her behalf and other material provided in support of her claims as previously outlined.
In particular, the Tribunal finds credible the claims, from the evidence before it, that she experienced violence from [Mr D], that [Mr D] and his family customarily accept that the applicant is now “tied” to [Mr D] and his family given the bride price initially paid out to her family, and that she fears suffering further violence at the hands of [Mr D] and her in-laws who blame her for the death of [Mr A] notwithstanding the compensation paid to them by her family.
The Tribunal finds credible the claims, from the evidence before it, that she suffered systematic abuse from [Mr D] and other members of the community, that she fled to her father’s village for protection, that [Mr D]’s tribe had made accusations blaming her father’s village for [Mr A]’s death, and that her father’s village was not able to protect the applicant from [Mr D]’s family, which eventually led her to move to Port Moresby for her safety to be with her cousin.
Her claims relating to her fear of suffering further physical and psychological harm or even death at the hands of [Mr D] and his family, her claims of being a single woman and being seen to be “tied” in marriage to [Mr D] due to the bride price in existence, and her fear that she cannot be protected from harm through the wantok system have remained substantially consistent throughout the entire protection visa process. The Tribunal accepts that further evidence provided in pre-hearing evidence and oral evidence at the hearing support the applicant’s claims that the “wantok” system will not protect her were she to return to Papua New Guinea in the reasonably foreseeable future. Further, her claims regarding gender-based violence are supported by country information, as outlined below.
Independent country information identifies violence against women in PNG as prevalent, with PNG having amongst the highest rates of gender-based violence in the world.[6]
[6] ‘Rethinking perceptions of spousal violence in PNG’, DevPolicy, Kingtau Mambon, 22 February 2023, Rethinking perceptions of spousal violence in PNG - Devpolicy Blog from the Development Policy Centre
The Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 25 July 2025 (2025 PNG Country DFAT Report) indicates that family and sexual violence is common in PNG. It states:
3.31 Violence is often perpetrated by male guardians/protectors of women and girls, as well as other male family members [emphasis added]. In 2023, Human Rights Watch estimated over 1.5 million people in Papua New Guinea experienced FSV in 2023. The Criminal Code 1974 criminalises FSV and imposes maximum penalties of two years’ imprisonment and fines but is enforced unevenly according to the US Department of State’s 2023 Papua New Guinea Human Rights Report. Data provided by UN Women shows at least 60 per cent of women in PNG have experienced physical and/or sexual violence from an intimate partner at some point in their lives, an amount double the global average. The Criminal Code 1974 criminalises intimate-partner violence but it persists throughout the country according to the US Department of State’s 2023 Papua New Guinea Human Rights Report. According to in-country sources the National Strategy to Prevent and Respond to Gender Based Violence (2016-2025), although well intentioned was poorly funded and implemented.[7]
[7] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 25 July 2025, paragraph 3.31
Again, according to the 2025 PNG Country DFAT Report:
3.39 Multiple in-country sources said the prevalence of FSV had declined moderately since the early 2000s. CSOs reported seeing less FSV survivors year-on-year because societal attitudes towards women were slowly improving. According to in-country sources, men were also learning they could be charged and prosecuted under the Criminal Code 1974 if they committed FSV. The RPNGC reported moderate declines in FSV case numbers but increases in cases of psychological abuse and financial neglect, which were often harder to prove in court. Programs like Parenting for Childhood Development (P4CD), although not specifically designed to address FSV, reported over 58 per cent of the female spouses of participants saw a reduction in violence committed by their husbands. Sixty-two percent of female and 71 percent of male participants confirmed the program meant they now talked through their disagreements without using violence. Poor societal understanding of the concept of ‘gender equality’ and the need to end FSV persists, with some Papua New Guineans perceiving them as ‘Western concepts’.
3.40 DFAT assesses women in PNG face a low to moderate risk of official discrimination in the form of inadequate state protection, reflective of resource constraints and individual prejudices of police rather than official policy. DFAT assesses women face moderate risk of societal discrimination due to traditional values, cultural traditions and stereotyped gender roles, which restrict their ability to participate fully in community decision making and politics. DFAT assesses women face a moderate to high risk of violence, particularly from male guardians/protectors and other male family members, on the basis of their gender (emphasis added).[8]
[8] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 25 July 2025, paragraph 3.39 to 3.40
According to the recent report by the US Department of State (Country Reports on Human Rights Practices for 2023):[9]
Gender-based violence, including sexual violence, gang rape, and intimate partner violence, was a serious and widespread problem [emphasis added]. Although the law also criminalized family violence and imposed maximum penalties of two years’ imprisonment and fines, it was seldom enforced. The law criminalized intimate-partner violence as well, but it nonetheless persisted throughout the country and was generally committed with impunity.
In January, Human Rights Watch’s World Report stated that the country remained a dangerous place for women, with weak law enforcement fostering a culture of impunity. Police officials acknowledged police could not keep women and children safe and lacked resources for thorough investigations [emphasis added]. In May, the Special Parliamentary Committee on Gender Based Violence revealed that in the country a woman was beaten every 30 seconds, and that 81 percent of the perpetrators were intimate partners of those beaten. The committee estimated that more than 1.5 million women experienced gender-based violence yearly. Due to stigma, fear of retribution, and limited trust in authorities, most women did not report rape or domestic violence to authorities. Moreover, most communities viewed intimate-partner violence as a private matter, further discouraging survivors from reporting the crime or pressing charges.
Those convicted of rape received prison sentences, but authorities apprehended and prosecuted few rapists. The legal system allowed village chiefs to negotiate the payment of compensation to survivors in lieu of trials for rapists. Anecdotal evidence suggested survivors and their families pursued tribal remedies, including compensation, in preference to procedures in official courts. Village and district courts often hesitated to escalate domestic matters to higher judicial levels. Village courts regularly ordered payment of compensation to an abused spouse’s family rather than issue an order to detain and potentially charge the alleged offender.
… … …
[9] US Department of State (Country Reports on Human Rights Practices for 2023), published 22 April 2024, PAPUA NEW GUINEA 2023 HUMAN RIGHTS REPORT
In explaining the practice of a “bride price” being paid to the bride’s family by the husband’s family (as was the case for the applicant), the 2025 PNG Country DFAT Report states:
3.26 A bride price is a sum of money ranging from PGK2,500 (about AUD1,000) to PGK300,000 (about AUD120,500) paid to the woman's family by the groom or his family. Bride price is a long-standing Melanesian tradition intended to strengthen familial bonds. The payment of bride price sometimes leads to a sense of ‘ownership’ and can result in a perceived entitlement by husbands to commit violence against their wives. In-country sources said this sense of ‘ownership’ or entitlement was felt the most strongly in the Highlands and was much weaker in all other parts of the country including Port Moresby and the subregions of Momase, Southern and the New Guinea Islands.”[10]
[10] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 25 July 2025, paragraph 3.26
In reporting on gender-based violence or harassment arising due to a ‘bride price” paid by a husband and his family for the marriage to a woman (such as has arisen in the applicant’s case), the US Department of State (Country Reports on Human Rights Practices for 2023) states:
Customary bride price payments continued, legal under customary law. This contributed to the perception by many communities that husbands owned their wives and could treat them as chattel. In addition to being purchased as brides, women sometimes were given as compensation to settle disputes between clans. Sexual harassment was not illegal and was a widespread and severe problem. Women frequently experienced harassment in public locations and the workplace [emphasis added].
Given the evidence before it, the Tribunal accepts that the applicant experienced sexual and physical violence from [Mr D] and his community after the death of her husband and while she remained living in their village. Her claims here have remained consistent and is supported by independent country information above.
The Tribunal finds the applicant’s claims regarding sexual violence, sexual harassment and customary “ownership” by [Mr D] and his family to be credible. These claims, which the delegate largely accepted, have been overall consistent throughout the application and review process and are supported by extensive documentary evidence which has been presented to the Tribunal as outlined above. The Tribunal is satisfied that the applicant’s oral evidence was based on genuine lived experiences. The applicant’s claims accord with a range of independent country information regarding the prevalence of domestic and gender-based violence in PNG.
On the evidence before it, the Tribunal finds as credible the applicant’s claims that [Mr D] and his family members see the applicant as now being “married” to [Mr D] and still a part of their family tribe due to the bride price paid by them, which they have not relinquished because of the sudden death of [Mr A], their kin, in the company of the applicant’s family. It finds credible the evidence from the witness statements and the applicant’s oral evidence that this has resulted in the violent sexual abuse and other abuse to her by [Mr D] and his family members.
The Tribunal accepts, and gives weight to, the letters from [Mr E], Councillor of [Tribe 1] and [Mr G], Councillor of [Tribe 2] respectively outlining their knowledge of abuse experienced by the applicant at the hands of [Mr D]. The Tribunal accepts, and gives weight to, the recent statements from the applicant’s sister, [Ms J], her daughter, [Ms B], and her cousin, “[Mr K]”, supporting the applicant’s claims.
Considering all the evidence before it, the Tribunal accepts that [Mr D] has a continuing and strong interest in the applicant back in PNG and that there is no evidence before the Tribunal that indicates that he, or his family, have given up on the applicant, were she to return in the reasonably foreseeable future. Given that the Tribunal has already accepted [Mr D]’s, and his family’s, past and systematic history of abuse and violence against the applicant, the Tribunal finds that there is a real chance that the applicant will suffer threats, harassment and violence from [Mr D] and his family members were she to return to PNG in the reasonably foreseeable future.
Given the evidence before it, the Tribunal accepts that the applicant will be returning to PNG as a single woman, or as a woman subject to domestic and family violence and abuse (from her in-laws) in PNG, or as a single woman in PNG subject to forced marriage and bride price or as a woman in PNG without male protection.
The Tribunal therefore accepts that the applicant falls within one or more of the following particular social groups for the purposes of section 5L:
a.Single women in PNG.
b.Women in PNG subject to domestic and family violence and abuse in PNG.
c.Single women in PNG subject to forced marriage and bride price.
d.Women in PNG without male protection
Refugee assessment
Based on the applicant’s circumstances, the Tribunal finds that if she were to return to PNG in the reasonably foreseeable future, she is likely to return to either Port Moresby, being her previous place of residence, or to her family’s village in [Town].
The Tribunal has considered the evidence that was before the delegate and the extensive evidence that is now before the Tribunal, evidence which are not new claims but evidence that supports and substantiates the applicant’s original claims. The Tribunal accepts that this new evidence has been obtained and presented in response to issues raised by the delegate in their decision which the applicant did not have an opportunity to respond to initially and is evidence which has been presented after delegate’s decision in response to issues raised by the delegate in their decision. Given this, the Tribunal does not draw an inference unfavourable to the credibility of the applicant’s claims or evidence and accepts the new evidence presented before it.
Having considered the history of violence and sexual assault on the applicant by [Mr D] and his family, and considering the evidence that [Mr D] has discovered where she lived in Port Moresby (even though she had lived relatively unknown for five years at her cousin’s house in Port Moresby) forcing the applicant to escape to Australia, the Tribunal finds that the applicant faces a real chance of serious harm from [Mr D] were she to return to Port Moresby in the reasonably foreseeable future. Moreover, the Tribunal accepts on the evidence before it (and reiterated by written submissions made on the applicant’s behalf by her representative) that none of her relatives now reside in Port Moresby (including her male cousin). On the evidence provided, the Tribunal accepts that the applicant will be on her own in Port Moresby if she were to return in the reasonably foreseeable future. The Tribunal finds this would significantly increase the chance of harm from [Mr D] and/or family members.
The Tribunal finds from the country information before it that the applicant faces a real chance of suffering serious harm in Port Moresby as a woman subject to domestic and family violence and abuse in PNG, or as a single woman in PNG subject to forced marriage and bride price.
According to DFAT’s most recent country report on PNG, violence is often perpetrated by male guardians/protectors of women and girls, as well as other male family members.[11] According to the US Department of State’s most recent report on human right practices in PNG, gender-based violence, including sexual violence, gang rape, and intimate partner violence, was a serious and widespread problem. The US Department of State went on to say that Human Rights Watch’s World Report stated that the country remained a dangerous place for women, with weak law enforcement fostering a culture of impunity. [12] While having regard to DFAT’s initial observation that “[m]ultiple in-country sources said the prevalence of family and sexual violence had declined since the early 2000’s”, the Tribunal gives significant weight to the conclusion made by the US Department of State’s recent reporting of widespread gender based violence and DFAT’s own conclusion in its recent report that “it assesses that women face a moderate to high risk of violence, particularly from male guardians/protectors and other family members, on the basis of gender..”.[13]
[11] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 25 July 2025, paragraph 3.31
[12] US Department of State (Country Reports on Human Rights Practices for 2023), published 22 April 2024, PAPUA NEW GUINEA 2023 HUMAN RIGHTS REPORT
[13] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 25 July 2025, paragraph 3.40
The Tribunal gives weight to the US Department of State’s recent reporting that “[c]ustomary bride price payments continued, legal, under customary law and that this “contributed to the perception by many communities that husbands owned their wives and could treat them as chattels”. It gives weight to the reporting that, in addition to being purchased as brides, women sometimes were given as compensation to settle disputes between clans. Sexual harassment was not illegal and was a widespread and severe problem.”[14]
[14] US Department of State (Country Reports on Human Rights Practices for 2023), published 22 April 2024, PAPUA NEW GUINEA 2023 HUMAN RIGHTS REPORT
Having accepted that the applicant has had a bride price paid for her by [Mr A]’s family; that her husband suddenly died in a car accident death in the company of her family; that [Mr D] has pursued her as his “wife” and has assaulted and abused the applicant; that [Mr D]’s family have also perpetrated abuse on the applicant; that [Mr D]’s family see the bride price as still in existence; and that [Mr D] has discovered where she has lived in Port Moresby before she came to Australia, the Tribunal gives significant weight to the country information above that support each of these claims and her fear of suffering serious harm at the hands of [Mr D] and his family were she to return to either Port Moresby or to [Town].
Based on the above findings, the Tribunal considers there is a real chance, being a possibility that is not remote or far-fetched,[15] that the applicant would be subjected to serious harm in the reasonably foreseeable future if she were to return to either Port Moresby or [Town]. This finding is also strengthened by the weight of the evidence that indicates that the applicant will return to PNG without male protection. This is a serious concern for the Tribunal given the US Department of State’s recent reporting that “the country remained a dangerous place for women, with weak law enforcement fostering a culture of impunity.”[16]
[15] Chan Yee Kin v MIEA [1989] HCA 62
[16] US Department of State (Country Reports on Human Rights Practices for 2023), published 22 April 2024, PAPUA NEW GUINEA 2023 HUMAN RIGHTS REPORT
The delegate found that the applicant would have the support of her family and wantok on return as a single woman. However, given the evidence before it, the Tribunal does not accept that the applicant will have male support in Port Moresby, given that all her cousins have now left Port Moresby and she will remain without any male support there.
The Tribunal has given weight to the submissions by the applicant’s representative, which are supported by the evidence and country information already considered by the Tribunal, as to why the applicant cannot be adequately protected in either Port Moresby or in [Town] under wantok:
The bride price payment is a common cultural practice in Papua New Guinea. Traditionally a gesture of appreciation towards a young woman’s family and relatives, in recent times the practice of the bride price has led to a sense of ownership.
In this case [Mr D] treated [the applicant] as chattel, to obtain compensation for his brother’s death. Given [the applicant]’s cousins, members of her father’s tribe, caused the car accident which led to her husband’s death. [Mr D] and his tribe believed that there was a need for compensation. Death, particularly death caused by members of one particular tribe, perpetuates pay-back culture in Papua New Guinea. Women often play a crucial role in compensation in tribal disputes. [The applicant] was used as compensation for her husband’s death to settle the tribal dispute, together with the payment made by the [Village] tribe. As a result [the applicant] was forced to a marriage and a relationship of ownership with [Mr D]. The exercise of this ownership is evident [Mr D]’s continued pursuit of [the applicant], and his most recent threats to her life.
If [the applicant] returns to her late husband’s village, [Mr D] will continue to impose this sense of ownership of [the applicant]. [The applicant] has expressed that she does not want to live as [Mr D]’s wife. As evident through [Mr D]’s past behaviour, [the applicant] will be subject to violence.
For similar reasons [the applicant] cannot return to her father’s village in [Village] given [Mr D] will easily locate [the applicant] there. As her father’s tribe has taken no responsibility over her, [the applicant] is without male protection in her father’s village. Previously, when [the applicant] was staying in [Village], [the applicant] describes her life as living like a prisoner, as she was unable to leave the village for fear the [Mr D] would find her. The village has no basic services, like shops or medical facilities.
Given [Mr D] now lives in the [Town] city centre, [the applicant] cannot join her sister there, as [Mr D] will easily locate her.
As to why, [the applicant] cannot return to Port Moresby, we draw the Tribunal’s attention to [the applicant]’s cousin, [Mr K]’s statement which is contained at Attachment of our previous submissions. [Mr K] is no longer in a position to look after [the applicant] and has moved from Port Moresby. As [the applicant] said at the Hearing, she doesn’t have any other connections in Port Moresby.
The Tribunal has therefore considered whether the real chance of harm relates to all areas of PNG. Considering the past harm, not only from [Mr D] but from his family as well, the Tribunal finds that the applicant would face a real chance of suffering serious harm from [Mr D] and his family in all areas of PNG, particularly given that [Mr D] has already located her in Port Moresby, a considerable distance from his family’s village. The Tribunal finds that the applicant would be residing without adequate male support or protection in all parts of PNG, including in her father’s village. Considering the prevalence of gender-based violence throughout PNG, the Tribunal finds that there is a real chance that the applicant will suffer gender-based violence in all areas of PNG.
The Tribunal finds that the applicant’s fear of persecution is for reasons of her membership of a particular social group which may be described as ‘single women in PNG’ or ‘single women in PNG without male protection’. The Tribunal finds 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 applicant; are not a fear of persecution; and are innate or immutable or distinguish the group from society. The Tribunal finds 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. The Tribunal finds 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. While the Tribunal has had regard to DFAT’s reporting that “it assesses women in PNG face a low to moderate risk of official discrimination in the form of inadequate protection, reflective of resource constraints and individual prejudices of police rather than official policy”,[17] it gives significant weight to the US Department of State’s most recent report (which reflects the ‘resource constraints’ of the police) that “the country remained a dangerous place for women, with weak law enforcement fostering a culture of impunity. Police officials acknowledged police could not keep women and children safe and lacked resources for thorough investigations italics added]”.[18]
[17] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 25 July 2025, paragraph 3.40
[18] US Department of State (Country Reports on Human Rights Practices for 2023), published 22 April 2024, PAPUA NEW GUINEA 2023 HUMAN RIGHTS REPORT
Considering the above, the Tribunal finds that effective protection measures, as defined in s 5LA, would not be available to the applicant.
The Tribunal finds that the applicants could not take reasonable steps to modify her behaviour to avoid a real chance of persecution. Such modification would fall within the exception in s 5J(3)(b) of concealing an innate or immutable characteristic.
For the above reasons, the Tribunal finds that the applicant has a well-founded fear of persecution in PNG and is a refugee 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, the Tribunals find that the applicant does 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, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 18 June 2025
Representative: Ms Jennifer Nugent
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.
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