2207088 (Refugee)
[2025] ARTA 1585
•6 June 2025
2207088 (Refugee) [2025] ARTA 1585 (6 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2207088
Tribunal:Alexandra Stratigos
Date:6 June 2025
Place:Brisbane
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)the first named applicant meets s 36(2)(a) of the Migration Act;
(ii)the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant; and
(ii)the grant of the visa is no prevented by 91WA.
Statement made on 06 June 2025 at 4:58pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – women living with HIV – domestic violence – gender-based violence – verbally, physically and sexually assaulted – coercive control – witnessed by child – single mother – supported by family – cultural expectations – obligation to repay bride price – fears husband – fears community and family discrimination – may be accused of sorcery – lack of access to medical care and treatment – will not be able to subsist – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 91WA, 369, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 6 May 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Papua New Guinea, applied for the visas on 5 April 2019. The delegate refused to grant the visas on the basis that they found the applicants did not face a real chance of serious harm or a real risk of significant harm if returned to Papua New Guinea now or in the reasonably foreseeable future.
The first named applicant appeared before the Tribunal on 2 June 2025 to give evidence and present arguments. The second named applicant is a minor, [he/she] attended the Tribunal however no evidence was taken from [him/her].
BACKGROUND
The applicants claim to be [an age]-year-old woman (Applicant 1) and her [age]-year-old [child] (Applicant 2) from Papua New Guinea (PNG)
Applicant 1 arrived in Australia in January 2019 and Applicant 2 arrived in February 2020.
The application was initially lodged with the Department of Home Affairs (the Department) by Applicant 1 on her own in 2019 as Applicant 2 was not in Australia. Applicant 2 was later added to the application.
Evidence before the Department
In support of the application the applicants submitted:
· completed protection visa application form, along with an updated form adding Applicant 2
· passport for Applicant 1
· photographs of injuries to Applicant 1
· statutory declaration from Applicant 1 outlining claims
· Statutory declaration from Applicant 1 in relation to Applicant 2‘s identity, along with a school certificate for Applicant 1, and DNA test results, and a passport and birth certificate which claim to contain incorrect information
· Submissions from the applicants’ legal representative
· Statutory declaration from Applicant 2’s teacher and copy of her National Identity Card
The Tribunal also has before it a copy of the decision of the delegate and a record of interview that Applicant 1 attended with the Department.
Claims expressed by Applicant 1
The applicant was born in Lae and grew up in [City 1]. She claims to have resided predominately in [City 1], she also lived in Lae and Port Moresby.
Her parents have both passed away. She has [siblings].
The applicant attended primary and secondary school, and [a training course].
She has had brief periods of employment in PNG most recently from late 2015 until early 2016 in Lae in [Occupation 1]. Other roles she has worked in are [in Occupation 2].
She was customarily married in 2008 and was separated in or around 2012/2013. Money and pigs were paid as a bride price. The applicant and her husband had one child of the relationship, Applicant 2, in [year].
From early on in her relationship the applicant’s husband was abusive physically, emotionally and sexually. She also described circumstances where he limited who she could communicate with. The applicant said that her husband was an alcoholic and engaged in extramarital relationships.
The abuse became worse in or around 2009-2010. Some of the instances of violence included being punched with a closed fist, causing the applicant to feel out of breath and she lost two teeth. She was dragged from a car down the street resulting in scaring on her left thigh. Having a knife held to her throat while being raped and saying ‘my knife is already smelling your blood’.
The applicant says her husband thought that he had the right to sexually assault, which he did. On one occasion he sexually assaulted while their child was in the same bed. He also hit the applicant when she was holding their infant [child].
The applicant reported an instance of rape to the police in Port Moresby, no action was taken by police against her husband and the applicant did not receive a copy of her report. She also reported events to a nurse when seeking medical attention following a knife cutting her neck. After this event the applicant and her husband engaged in traditional mediation involving both their families; this angered her husband as the applicant had involved other people in the events and resulted in more physical abuse.
The applicant’s husband responded to the mediation by saying that she should go and take their [child], however he later made threats that he would take their child from the applicant.
In or about 2013 the applicant ran away from her husband and took their [child] with her. The applicants went from Port Moresby to [City 1] however around mid-2014 she heard that her husband was looking for her. They then moved to Lae, however the applicant was located in the market by her husband in late 2014, she received help from a bystander who intervened to prevent harm.
The applicant and her [child] then returned to [City 1] where they lived with Applicant 1’s brother. They returned to Lae in late 2015 for employment purposes, however returned to [City 1] a few months later when she lost her job.
In late 2018 the applicant’s husband located her and demanded that she and her [child] return to him. Applicant 1’s brother advised her that she should return to her husband, or at least return her [child] to him. In October 2018 the applicant then travelled to Australia on a visitor visa and left her [child] in the care of her sister and her sister’s husband.
In 2019 the applicant’s husband attended Applicant 2’s school in [City 1] and attempted to collect [him/her] from school. The school refused to let Applicant 2 be taken by [his/her] father. A statement from Applicant 2’s teacher was provided outlining the circumstances of this event.
The applicant fears that if she returns to PNG her husband will harm her and she will not be able to care for her [child]. She also fears that he will try to take her [child] away from her. She claims he is violent and unpredictable.
She fears there is no adequate state protection, no matter where she goes her husband will find her, and her family cannot offer her adequate protection, citing that her own brother recommended she return to her husband.
Claims expressed on behalf of Applicant 2
Applicant 2 was born in Port Moresby and has lived in Port Moresby, Lae and [City 1]. [He/she] was living in [City 1] with [his/her] maternal aunt prior to travelling to Australia.
Applicant 2 arrived in Australia Feb 2020, along with [his/her] aunt and cousins.
Applicant 2’s family name is not correct on [his/her] birth certificate and passport, and the parents on the birth certificate are not correct. Applicant 2’s aunt and uncle are listed as [his/her] parents, and the family name is their family name.
Applicant 2’s aunt obtained the passport and birth certificate, and then applied for the visitor visa for Australia using those documents.
Prior to obtaining the passport and birth certificate that contains the incorrect family name and parents, Applicant 2 did not have a birth certificate or passport.
In the visa application form no claims for protection were made. In a statement submitted to the Department following the interview, Applicant 1 wrote:
I am so scared that if [his/her father] abducts [him/her], my [child] will be forced to see all the horrible things [his/her father] does again…. I need my [child] to be around people who will help [him/her] to be a good person, [he/she] will not have a future if [his/her father] takes [him/her].
In submissions from the applicants’ legal representative, they wrote:
We submit that the applicant’s [child], …, is at further risk of the above-mentioned persecution by reason of, either cumulatively or separately, [his/her] membership of the following social groups:
iv. Children of single women in PNG; and
v. Children of women in PNG subjected to domestic violence.
Evidence before the Tribunal
The applicants submitted supporting documents to the Tribunal prior to hearing, including:
· Statutory declaration from Applicant 1 outlining claims
· Letter of Support from Mr [A], peer services co-ordinator at [Support service 1]
· Statutory declaration from Applicant 1’s sister in relation to parentage of Applicant 2
At the hearing Applicant 1 submitted a medical report from [a doctor] at [a health service].
Applicant 1 gave evidence at hearing in support of her claims. The evidence given was substantially consistent with written evidence before the Tribunal and also with her evidence given in the interview with the Department. One new claim was raised with the Tribunal in writing prior to hearing and orally that was not before the Department. To the extent that the evidence is different or expanded upon it is outlined below.
The applicant claims that if she is forced to return to PNG she would have to live in [City 1].
The new claim raised stems from her diagnosis with HIV. The applicant claims she was diagnosed as being HIV positive as part of suggested medical checks conducted by [Refugee clinic 1] in Brisbane in late 2020/early 2021. The applicant claims that she fears returning to PNG as a result of her diagnosis.
The applicant claims that when people in the community see her presenting at an HIV clinic then everyone would become aware of her HIV status, she claims that when this has happened to people then they ‘don’t last’.
The applicant also claims that doctors and nurses do not respect confidentiality in PNG the same way they do in Australia, and the health care workers will inform others.
The applicant claims she suspects her husband is also HIV positive and that she contracted HIV from him, she suspects this as she claims that she has not had a relationship with anyone there than him. She is fearful that her husband will blame her for him being HIV positive and then he will harm her. The applicant claims that she has heard from others who know her husband that he is not looking well, people have offered this information to the applicant without knowing the applicant’s HIV status, she suspects that her husband is not looking well due to HIV.
The applicant described her husband as a psychopath or socio path she describes him as unpredictable and prone to ‘snapping’ easily. She claims that if she goes back her husband will kill her and her [child] will be left without a mother. She claims that he can easily find them due to the Wantok system in PNG which means that someone in the community will report her return to her husband. She is fearful of her husbands reaction to her HIV status, and him likely being HIV positive also, and also because of her leaving him.
The applicant claims she has not disclosed her HIV condition to anyone, even her close sister. She does not want to be looked at differently, discriminated against or treated differently.
The applicant is unsure if she would be permitted to go into her family members’ houses if they were aware of her HIV status.
The applicant claims she had of a cousin who was HIV positive. Her cousin was neglected by her family and left on her own in a house all alone. When she died no one attended her funeral. The applicant claims that her cousin was adopted and the adoptive mother sent her back to her biological mother, a family member, when they learnt of her HIV status. She claims that the biological mother said she was not permitted to come in the house however a brother had a house by the river and said she could live there alone. The applicant claims that this occurred in or around 2015/2016 in Lae. The applicant said that she herself looked at her cousin differently and treated her differently.
The applicant claims that she has little knowledge about access to treatment for HIV or any costs associated, in PNG generally or [City 1] specifically, as she was diagnosed in Australia. The applicant claims that in Australia she is receiving anti-retroviral (ARVs) called [medication name].
The applicant has been advised by her doctors that she needs to take treatment every day in order to survive.
The applicant claims to rely upon support services in Australia such as, [Support service 1], and [Refugee clinic 1] to support her with looking after her health, she is unaware if such services are available in PNG
The applicant claims she will be unable to support herself if she returns to PNG. Since being in Australia she has obtained a Certificate III in [Industry 1], however she claims that there is no [Industry 1] in PNG so she could not obtain work in that area, and she fears she will not be able to obtain any employment due to her HIV condition.
The applicant claims that her [child] will also be affected when the community learn of her HIV condition, they will say to [him/her] words such as ‘your mum has AIDS’ or ‘your mum will die of AIDS’. She claims that such ridicule would cause her [child] trauma.
The applicant claims that she was not yet diagnosed with HIV when her protection visa application was lodged in 2019. Then when she was diagnosed in late 2020/early 2021 she did not want to tell anyone, even the Department, about her HIV status. However, when the hearing before the Tribunal was called she knew she needed to say something because she is fearful of returning to PNG due to her HIV condition.
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
The issue in this case is whether the applicants are owed protection as refugees or under the complementary protection criterion. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Background and Identity
Applicant 1 claims to be [an age]-year-old woman from Papua New Guinea, she provided a copy of her passport and her stated identify is consistent with the detains contained in the passport. The Tribunal accepts that the applicant’s identity is that which is contained in her passport. The Tribunal accepts that Papua New Guinea (PNG) is the country of reference.
Applicant 2 claims to be [an age]-year-old [child] from Papua New Guinea, however there is some inconstancies as to the parentage and family name for Applicant 2.
Applicant 1 claims that Applicant 2’s family name is different to that which is contained on [his/her] passport and birth certificate, she also claims that [his/her] birth certificate incorrectly indicates that [his/her] aunt and uncle are [his/her] parents. DFAT reports that:
Document fraud occurs frequently in PNG, particularly in relation to identity documents. It is reportedly very easy to obtain birth certificates in any name. Fraudulent supporting documents, including fake bank certificates and letters of invitation, can also be readily obtained. It is reportedly not uncommon in cases of visa non-compliance for people to re-apply under a new identity.[1]
[1] DFAT Country Information Report Papua New Guinea, September 2022
When Applicant 2 was added to the application the application stated that the details on the birth certificate and family name on the passport and birth certificate were incorrect, the birth certificate and passport were provided, also accompanying the application was a statutory declaration from Applicant 1 outlining the circumstances of obtaining the passport and birth certificate and how they came to contain incorrect information, a grade 2 certificate from an elementary school in [City 1] dated [date] that contains what is asserted to be the correct family name for Applicant 2, that being the same family name as Applicant 1, and DNA test results.
Based on the applicants’ evidence and the country information the Tribunal finds that the passport and birth certificate are fraudulent, however the Tribunal finds that s 91WA does not apply. Under s 65(1), the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s 91WA. Relevantly, s 91WA is enlivened where “the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship.” Given that the fraudulent documents were accompanied by information asserting that they contained incorrect information the Tribunal finds that those documents were not provided as “evidence of the applicant’s identity, nationality or citizenship” but rather to provide context to the discrepancy in relation to Applicant 2’s name and parentage.
When Applicant 1 applied for the protection visa in April 2019, in that application she listed Applicant 2 as a non-migrating member of the family unit, and the family name for Applicant 2 is consistent with what is asserted to be the correct family name. DNA test results were provided to the Department which establish that that there is a 99.999999998609% probability that Applicant 1 is the mother of Applicant 2. The applicants also provided the school certificate that predates the lodgement of Applicant 1’s protection visa application and predates the date of issue for the birth certificate and the passport.
Applicant 1 claims that she had never obtained a birth certificate or passport for Applicant 2, and accordingly never held a birth certificate or passport with the correct name and parentage, consistently with this evidence, DFAT report that 80% of Papua New Guineans lacked a clear form of identification.
The Tribunal is satisfied based on the DNA results, the school certificate and the oral and written evidence, that Applicant 2 is the [age]-year-old [child] of Applicant 1, and that [he/she] is a citizen of Papua New Guinea.
The applicants have claimed to be citizens of Papua New Guinea and nowhere else. There is nothing before the Tribunal to suggest that the applicants have any rights to enter or reside in any country other than Papua New Guinea, accordingly the Tribunal finds that s 36(3) does not apply to the applicants.
Assessment of claims and evidence
Applicant 1’s evidence, both written and oral, since commencement of her application with the Department up until hearing has been by and large consistent.
The applicant provided significant detail as to her relationship history and the history of abuse she faced from her ex-husband. The applicant described being verbally, physically and sexually assaulted between 2008 and 2013. She was also described coercive control exercised over her by her husband.
The DFAT Country Information Report states that:
Violence against women and girls in PNG is very common, among the most common in the world. In PNG, such violence is sometimes referred to as Gender-based Violence (GBV) or Family and Sexual Violence (FSV). Sources report that almost all women and girls will be subject to violence at some point during their lives. The PNG Demographic Health Survey of 2016-18, which is the latest data available, found very high levels of violence against women: 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15 (including 48 per cent in the last 12 months); 28 per cent experienced sexual violence; and 18 per cent of women who had been pregnant had experienced violence during their pregnancy. The PNG Coalition of Parliamentarians to End GBV states that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of GBV every year.
…
DFAT assesses that women across PNG face a high risk of societal discrimination due to longstanding traditional values and gender roles which restrict their ability to fully participate in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide. Women who are subjected to genderbased violence are unlikely to be able to avail themselves of adequate state protection or support services.[2]
[2] DFAT Country Information Report Papua New Guinea, September 2022
Based on the above-mentioned county information and the evidence of Applicant 1, including photos of injuries sustained, namely a cut to her neck and missing teeth, the Tribunal accepts that the applicant was the victim of domestic violence throughout her relationship. The Tribunal also accepts that some of these acts of violence occurred in the presence of Applicant 2.
Applicant 1 has provided consistent evidence as to the breakdown of the relationship, and that she has been the sole parent to her [child], there is nothing to suggest that she has formed a new relationship. The Tribunal accepts that the relationship between Applicant 1 and her husband ended when she left him in or about 2013. The Tribunal also accepts that Applicant 1 is single mother to her [age]-year-old [child], Applicant 2.
Applicant 1 gave evidence about contact she has had with her husband since the relationship ended, namely her husband locating her in the market in Lae in 2014, being located at her brother’s home in 2018, and her husband attending on Applicant 2’s school in [City 1] in 2019 seeking to collect [him/her] from school. The Tribunal accepts that these events occurred.
Applicant 1 gave evidence that she was predominantly supported by family since separating from her husband and has only had brief periods of employment. The applicant also gave evidence that her brother had recommended she return to her husband when he approach her at the brother’s house. The Tribunal accepts that the applicants have been supported by family both financially and socially, however the Tribunal also accepts that Applicant 1 may face pressure from her brother to return to her husband for cultural and financial reasons, such as any obligation to repay the bride price as reported by DFAT.[3]
[3] DFAT Country Information Report Papua New Guinea, September 2022
Applicant 1 provided medical evidence relating to her diagnosis with HIV and her engagement with treatment and support services while in Australia. The Tribunal accepts on the medical evidence that Applicant 1 is a person living with HIV.
The applicant claims that she will struggle to access treatment for her HIV condition, and that she needs to take anti-retroviral treatment daily to survive. DFAT reports that:
In 2019, the latest year for which data is available, according to the World Health Organization (WHO), PNG’s life expectancy was 63 years for men and 67 for women. PNG has some of the worst health indicators in the Asia-Pacific. The country’s health system is fragile, with poor health and immunisation outcomes, and has been assessed by the WHO as among the 10 worst in the world.
…
PNG has the highest rates and number of HIV cases in the Pacific. Communicable diseases, including malaria, tuberculosis, diarrhoeal diseases, and acute respiratory disease are major causes of morbidity and mortality. Access to health care is extremely challenging for urban poor and rural remote communities.
UNAIDS reports that in 2023 there were approximately 77,000 people living with HIV in PNG, this includes 59,000 who known their HIV status. Since 2010 and 2023 there was a 104% increase in new HIV infections. Of the people known to be living with HIV 64% are receiving ART, and there were approximately 44,000 who were virally supressed. In 2023 there were approximately 1,000 AIDS related deaths.[4]
[4] UNAIDS, Country Factsheet – Papua New Guinea 2023 <>
Based on the state of the PNG health care system as reported by DFAT and the statistics from UNAIDS the Tribunal accepts that the applicant may not have reliable access to health care or treatment for her HIV condition, which would result in deterioration of her health and could lead to death.
The applicant claims that she will struggle to support herself and her [child], and that her family may not support her due to her HIV condition. The applicant cited the treatment of her cousin as an example of how community and family treat people living with HIV. The Tribunal accepts the applicant’s account of events relating to her late cousin, and the Tribunal accepts that the applicant may be treated similarly to how her cousin was treated. The Tribunal also accepts that stigma and discrimination would stretch to affect the applicant’s capacity to obtain gainful employment, and the Tribunal notes that there are no anti-discrimination laws to prevent HIV discrimination in an employment setting.[5]
[5] United States Department of State Report. Country Reports on Human Rights Practices: Papua New Guinea (2022) < >
The applicant claims that she fears harm from her husband. Prior to her HIV diagnosis she feared harm due to him having harmed her in the past and made contact on three occasions since she left him in 2013. She claims he is capable of great harm. The applicant claims that no matter where she moved to within PNG her husband was able to locate the applicants. The Tribunal accepts that her husband has in the past committed significant acts of violence towards the applicant, however the Tribunal does not accept that the applicant faced an ongoing threat to her solely due to her past relationship and having had a child together. The Tribunal accepts the applicant’s evidence that she fears her husband and that he has the potential to locate and harm her, however the three contacts the applicant’s husband made over a period of 6 years suggests that he is not motivated to do so. Similarly, the Tribunal finds that given the small number of attempts that Applicant 2’s husband made to take Applicant 2 into his custody combined with the fact that Applicant 2 is now significantly older, that Applicant 1’s husband would be unlikely to abduct Applicant 2.
Applicant 1 claims that she is now at further risk of harm due to her diagnosis with HIV. She claims that her husband is also HIV positive as she claims that he is the only possible source of her having contracted HIV, the Tribunal accepts this evidence. The applicant claims that when the community learns of her HIV condition, which the Tribunal accepts that they will upon presentation at a clinic for treatment or physical signs of deterioration of her health, that her husband will also become aware of the applicant’s HIV condition, that he will blame her for his HIV condition and that he will seek to harm her by way of retribution. In this regard the Tribunal notes the reference in the DFAT report to risk of violence when people, particularly for more vulnerable community members, are blamed for misfortune such as a diagnosis with HIV.[6] This reference is specifically in the context of accusation of sorcery, the report suggest that such accusations are widespread across PNG.
[6] DFAT Country Information Report Papua New Guinea, September 2022
Accordingly, while the Tribunal has not accepted that the applicant husband was motivated to harm her prior to her HIV diagnosis, the Tribunal accepts that there is a real chance that her husband will blame her for his HIV status and seek to do her harm.
The Tribunal also finds that conversely to her circumstances prior to the HIV diagnosis where she was afforded support, and a degree of protection, from her family, given the findings of the Tribunal in relation to community and family attitudes around HIV and the treatment of her cousin the Tribunal finds that such supports may no longer be afforded to Applicant 1 and her [child].
Does the applicant satisfy the refugee criterion for protection?
The applicant claims she is at risk of being physically attacked by her husband, community and family discrimination, and lack of access to medical care and treatment. Based on the above findings, the Tribunal accepts that the applicant faces a real chance of harm if returned to PNG now or in the reasonably foreseeable future.
For the purposes of s 5J(4), s 5J(5) provides a non-exhaustive list pf instances of serious harm. The Tribunal finds that the harm that the Applicant 1 faces include threats to her life and physical harassment from her husband. The Tribunal also finds that the applicant’s capacity to subsist will be threatened as a result of an inability to support herself. The Tribunal accepts that the applicant has been by and large reliant upon family for support since her relationship dissolved and the Tribunal accepts that there is a real chance that the applicant’s family will no longer provide such supports. The Tribunal further accepts that the applicant’s capacity to obtain employment so as to support herself will be impacted by the likelihood of poor health outcomes and stigma and discrimination towards people living with HIV more broadly. The Tribunal accepts that such harm involves systematic and discriminatory conduct. The Tribunal also finds based on the above country information that the harm relates to all area of Papua New Guinea.
The Tribunal finds that the essential and significant reason for the harm that the applicant faces is due to being a woman living with HIV. The Tribunal finds that ‘women living with HIV’ constitutes a particular social group within the meaning of s 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). The Tribunal has found the harm the applicant faces includes gender-based violence from her husband, the above mentioned country information indicates that state protection is often ineffective. The Tribunal also finds that there are no adequate community resources or protections available to ameliorate the impacts of community and familial stigma and discrimination.
Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter his or her political beliefs, conceal his or her true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status. Accordingly, given that real chance of harm steams from the applicant’s gender and health status, The Tribunal finds that there is no modification that the applicant could make to avoid harm.
Given the above findings the Tribunal is satisfied that Applicant 1 has a well-founded fear of persecution as described by s 5H, and is owed protection as a refugee under s 36(2)(a).
CONCLUSION
For the reasons given above the Tribunal is satisfied that the first named applicant (Applicant 1) is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a). The Tribunal finds that s 36(3) does not apply to the applicant.
The Tribunal is not satisfied that Applicant 2 is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that Applicant 2 is the child of Applicant 1 and is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of [his/her] application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:
·(i) the first named applicant meets s 36(2)(a) of the Migration Act;
·(ii) the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant; and
·(iii) the grant of the visa is not permitted by s 91WA.
Date(s) of Hearing: 2 June 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly
…
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.
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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.
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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.
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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.
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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.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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91WA Providing bogus documents or destroying identity documents
(1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i) provides documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to provide such evidence.
(3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
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