2207153 (Refugee) - [2025] ARTA 1482

2207153 (REFUGEE) [2025] ARTA 1482 (4 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2207153
Tribunal:General Member M Bailey
Date:4 April 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; and
(ii)the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 04 April 2025 at 3:24pm
CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea – continual abuse from her husband’s relatives and tribe – inter-tribal and gender-based violence – gender and tribal/family connections – member of the particular social group – Women in PNG who have experienced tribal and family violence – effective state protection is not available – applicant’s fear of persecution is well-founded – membership of the same family unit – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Act), ss 5, 36, 65, 359, 367, 499
Migration Regulations 1994(Act), r 1.12, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) 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 applied for the visas on 5 August 2019. The first named applicant (applicant) and the second and third named applicants (second and third applicant) raised their own claims for protection. The fourth named applicant (fourth applicant) did not raise her own protection claims. The delegate refused to grant the visas on the basis that the applicant, second applicant and third applicant do not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The delegate was satisfied that the fourth applicant is the biological child of the applicant and second applicant and the sister of the third applicant. However, given the findings outlined above, the fourth applicant was found to not satisfy s 36(2)(b) or s 36(2)(c) of the Act.
On 17 May 2022 the applicants lodged a review application with the former Administrative Appeals Tribunal (AAT). A copy of the delegate’s refusal decision was provided as part of the review application. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicants appeared before the Tribunal at the Brisbane Registry on 12 March 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.
BACKGROUND
The applicant is a [age]-year-old female from Papua New Guinea (PNG). The second applicant, a [age]-year-old male, is her husband. The third applicant, a [age]-year-old male, and the fourth applicant, a [age]-year-old female, are their biological children. Copies of various identity documents evidencing these relationships were submitted to the Department of Home Affairs (Department) and the familial relationships were accepted by the delegate.
The applicants presented their PNG passports to the Department and the delegate was satisfied that the applicants are citizens of PNG. There is no information before me to the contrary. I am satisfied that the applicants are citizens of PNG and PNG is their receiving country for the purposes of assessing their protection claims.
Given my conclusion below that the applicant engages protection obligations, I have not undertaken an assessment of whether the second, third and fourth applicants engage protection obligations in their own right. As outlined below, I am satisfied that they are members of the same family unit as the applicant.
The applicant first arrived in Australia on a Student [visa] on [date] January 2015. Between January 2015 and her final arrival to Australia on [date] January 2019, she has returned to PNG on 10 occasions.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant’s biographical details and protection claims, as outlined in the protection visa application, supporting documents, oral evidence provided at an interview with the Department held on 20 January 2022 and post-interview evidence, is summarised below:
i.She was born and grew up in [Village 1] village, [District 1] District, [City 1], Western Highlands Province and is a member of the Kombulga tribe. Her father passed away when she was young. She was raised by her aunt and uncle. She has 2 brothers and one sister.
ii.She married the second applicant in August 2003. Her husband is from [Village 2] village in [City 1] and is a member of the Jika Komapi tribe. Following her marriage, she lived in [Village 2] village until her departure for Australia in January 2015.
iii.The applicant and her husband had 3 children born between [year] and [year]: the third and fourth applicants and a son, [name], who passed away in November 2014.
iv.From January 2000 she was employed as a [occupation] with [workplace]. She came to Australia in January 2015 under an AusAID scholarship to study a [degree]. The second, third and fourth applicants arrived in Australia on [date] August 2015 as dependants on the applicant’s Student visa.
v.Since her marriage in 2003, she has experienced continual problems and attacks from members of her husband’s family and tribe. This was primarily due to her being from the Kombulga tribe and her affiliation with her uncle, [Mr A], who was a political candidate in the 2002 general elections. A rival candidate was ‘[Mr B]’ from the Minimbi tribe. [Mr B] was the uncle of her brother-in-law’s (Mr N) wife (Ms T). Mr N wanted the second applicant to marry someone from the Minimbi tribe and objected to his marriage to the applicant.
vi.The applicant referred to several incidents of harm from her husband’s relatives and tribe between 2008 and 2015:
a.In around August 2008, Mr N and Ms T attacked the applicant in her garden due to a dispute over land given to her family by her mother-in-law.
b.In 2008 she was physically assaulted while in her home by her husband’s cousin (‘Mr S’). He was drunk and accused her of encroaching on his land, which neighboured their property. She complained to the police who advised her to resolve it with the village leaders. Mr S was ordered to pay 50 PNG Kina (approx. 20 AUD) in compensation.
c.In August 2011 she was physically assaulted in her home by 3 of her husband’s male relatives, including Mr S, while she was [pregnant]. Mr S was drunk at the time. She again sought to resolve this incident with the village leaders. A medical report dated [August] 2011 from the Emergency Department of the Western Highlands Provincial Health Authority was submitted. The report states that the applicant was physically assaulted [in] August 2011, while [pregnant], after she refused to give money to her husband’s cousins who were drunk at the time. She sustained a blunt trauma injury to the head, deep lacerations on her chin and upper lip and fractures to 2 front upper teeth. Photos of the damage to her teeth were also submitted.
d.In October 2014, Ms T and 3 other women from her husband’s tribe attacked her in her garden in connection with the death of the brother of Mr S. He was killed earlier that month by members of another tribe during an argument that took place in front of her husband’s store. Her husband was blamed for his death because it occurred during a dispute at his store.
e.In mid-November 2014, she travelled to Port Moresby with her younger son, who was [age] years old at the time, to attend an AusAID briefing prior to her departure for Australia. She left her son with some relatives while she attended the briefing. Her son was locked in a rundown car and exposed to contaminated air. He died a few days later in hospital of a brain injury and lung damage. She was told that her son had been left with a woman from the Minimbi tribe who was related to Ms T. A copy of her son’s death certificate dated [November] 2014 was submitted.
f.In April 2015, after returning from Australia to [City 1] to visit her husband and children, Ms T and 3 of her sons and several others from the Minimbi tribe, came to her house and physically and verbally attacked her, accusing her of giving priority to her studies rather than caring for her children.
In 2015, because of the problems they were experiencing in [City 1], the applicant and her husband purchased some land in Port Moresby with a view to moving there on return from Australia. In December 2015, the applicant, her husband and children travelled to Port Moresby, after being told that a member of her husband’s tribe had claimed the land. While attempting to fence off the land with the help of some church members, they were attacked by police officers who had been bribed by the tribesman who claimed the land. After showing the police the land purchase document, they were told to resolve the dispute with the landlord. They did not pursue this matter further because of a fear of further conflict.
She fears returning to PNG because of the continual abuse from her husband’s relatives and tribe. When she and her family returned to PNG in December 2017, they were subjected to threats of harm from her husband’s relatives, including his younger brother (‘Mr W’).
Following the protection visa interview, the applicant provided additional information to the Department, as summarised below:
i.During her last trip to PNG in January 2019, she did not travel to [City 1] as usual to visit her son’s grave because her sister told her that the behaviour of Mr W, Mr S and Mr N had become more aggressive and threatening. She previously travelled to PNG despite the dangers because she wanted to visit her son’s grave. His death has caused her ongoing mental trauma. During her final trip in 2019, she realised that she needed to focus on her 2 living children.
ii.In April 2019, Mr W was physically abusive toward his mother, resulting in her being hospitalised. A medical report dated 12 April 2019 from the Western Highlands Provincial Health Authority was submitted, stating that the second applicant’s mother attended the hospital on 10 April 2019, having sustained injuries to her face and body consistent with a blunt instrument being used with extreme force.
iii.A copy of a media article published in [media] on [date] July 2015 was submitted which refers to Mr W and another man as ‘preachers’ who had burnt the Holy Bible in front of a large crowd in [City 1] and been rescued by the police from a ‘public lynching’.
iv.Mr W continues to forcibly take money from her husband’s store, resulting in arguments with her husband. During a return trip to PNG, Mr W made threats to kill her husband, herself and the children. A copy of a report dated 29 April 2019 from [City 1] police station was submitted, referring to complaints made by the second applicant of Mr W coming to his store, threatening the workers and taking money.
v.The applicant recently received a text message from her ‘father’ about the threats from Mr W and other members of her husband’s family, stating that they have become more serious after the death of her mother-in-law in November 2021. It would not be safe for her to return to PNG as her in-laws blame her for the second applicant being in Australia and unable to attend his mother’s funeral. A copy of the message was submitted.
vi.In 2021, Mr S, his brother and 2 of his cousins broke into the home of the second applicant’s brother, [Mr G], and assaulted his daughter (photos and a medical report dated 25 January 2021 were submitted). Because she and her family are not in PNG, Mr W, Mr S, Ms T and Mr N are targeting their family members who support them, including [Mr G].
In refusing the application, the delegate did not accept that the applicant had been targeted by her brothers-in-law, Ms T or Mr S because of her relationship with [Mr A] or for any other reason. The delegate noted that the applicant had not submitted any evidence of her relationship to [Mr A] or the political rivalry between [Mr A] and [Mr B]. While the delegate accepted that the applicant had been attacked in her home by Mr S and 2 other men in August 2011, this was found to be an ‘isolated situational incident’ which occurred more than 10 years ago while Ms S was drunk and had been resolved in the village court. The delegate did not accept that Mr W had any ongoing intention to harm the applicant, finding that Mr W was targeting the financial proceeds from the second applicant’s store rather than the applicants personally. While acknowledging that the death of her youngest son would have been a ‘devastating event’ in her life, the delegate did not accept that this was a targeted incident toward the applicant.
The delegate placed adverse weight on the applicant’s frequent return travel to PNG between 2015 and 2019 and the delay of approximately 4 years in applying for protection from the time of her first arrival in 2015. The delegate took account of the applicant’s explanation that she initially wished to return to PNG to use her qualifications to benefit her country and returned on multiple occasions despite the risks but did not consider this to sufficiently address these concerns.
Evidence before the Tribunal
Pre-hearing evidence
Prior to the Tribunal hearing, the following additional evidence was submitted:
i.Statement of the applicant dated 7 March 2025
ii.Statement of the second applicant dated 7 March 2025
iii.Statement of the applicant’s sister, Ms [H], dated 7 October 2024
iv.Statement of [Mr A] dated 28 February 2025
v.Extract from the PNG Election Results Database showing candidates in the 2002 general election for the ‘[District 1]’ electorate including [Mr A] and [Mr B]
vi.Copy of ‘Land Transfer Agreement’ dated 16 February 2014 relating to property in [Village 3] Village, [City 1]
vii.Copy of ‘Land Usage Agreement’ dated [August] 2015 relating to property in Port Moresby
In her written statement, the applicant provides additional details regarding the incidents of harm she experienced in PNG between 2008 and 2015 as outlined above, and addresses aspects of the delegate’s refusal decision. Regarding her return travel to PNG, she acknowledges that she travelled to PNG several times. She wanted to maintain a connection to her deceased son by visiting his grave. They returned in December 2015 to resolve the land dispute in Port Moresby. She states that, prior to purchasing land in Port Moresby in 2015, they had purchased land in [Village 3] village in February 2014 in an attempt to move away from her husband’s family. Her sister lived on this property following their departure for Australia in 2015. Last year Mr W, together with Mr N and Ms T, forced her sister to vacate the property and have taken possession of it.
Ms [H]’s statement provides details of the incidents causing her to leave the property in [Village 3] village. In early 2022 Mr N’s son continuously demanded that she contact the applicant and second applicant regarding contributing to his bride price payment. She was subjected to physical and verbal harassment from Mr N’s son and Ms T. As a result, in June 2024, their mother had to contribute to the bride price payment on behalf of the applicant. In March 2024 Mr W came to the property, killed her dog and threatened to do the same to her if she did not leave the property. Mr N bribed the landlord to threaten her and her family to leave the property. In April 2024, she and her family left the property and returned to their village. A letter dated 2 October 2024 was submitted evidencing her son’s move to a new primary school on 24 April 2024.
According to [Mr A]’s statement, he was [a politician] between 2002 and 2007. The applicant is his brother’s daughter, and he is the applicant’s closest relative. Her marriage to the second applicant caused conflict with her husband’s relatives, particularly his older brother (Mr N) and Mr N’s wife (Ms T). Ms T’s tribe are also from [District 1] District. They were jealous and angry because of the care and attention he gave to the applicant and believed they deserved the same. The situation was aggravated by political factors as Mr N’s brother-in-law ([Mr B]) was his political rival during the 2002 general elections. [Mr A] provided his contact details if further information was required.
In the ‘Response to hearing notice’ form, the applicant requested the Tribunal take oral evidence from [Mr A] and Ms [H]. Contact details were provided.
Oral evidence
The applicant confirmed that she completed the protection visa application and wrote the Tribunal statement herself. She received some help from the Refugee and Immigration Legal Service (RAILS) but has never been represented by RAILS.
The applicant confirmed that she was raised by her aunt and uncle, whom she refers to as her parents. They continue to reside in [Village 1] village and support themselves through subsistence farming. Her biological father was killed in a tribal fight when she was a child. Her biological mother lives in [Village 1] village but she was raised by her aunt and uncle for her protection. She has 2 biological siblings: a brother who was adopted by the [Mr A] family following her father’s death and a sister, Ms [H]. She also has 2 ‘brothers’ who are the biological sons of her aunt and uncle. She maintains contact with her parents and sister.
She met her husband while working at the [workplace] in [City 1]. The marriage was not arranged by their families. Her husband paid a bride price to her family. Mr N and Ms T were unhappy about the marriage and became aggressive toward her during the bride price ceremony. After marrying her husband in 2003, she moved to his village which she estimated is located around 40 kms or a 30 minute drive from [Village 1] village.
Asked whether she experienced any problems between 2003 and 2008, she stated that there were some issues, but the first serious incident occurred in 2008. Some of her husband’s relatives supported her, including his mother and his second-oldest brother, [Mr G]. Regarding the incidents of harm in 2008 and 2011 involving Mr S, she clarified that she did not resolve these through the village court system as stated in the delegate’s refusal decision. The were dealt with by the village elders.
Regarding the death of her younger son, she acknowledged that she has no evidence of who was responsible for locking him in the car but suspects that a relative of Ms T’s from the Minimbi tribe was involved. The applicant, and second applicant in his separate evidence to the Tribunal, referred to the accidental death of [Mr G]’s [age]-year-old son which they also believe to be suspicious. They buried her son in front of their former house in [Village 2] village.

Regarding Mr W, the applicant and second applicant indicated that he is mentally unstable and generally aggressive. The second applicant stated that there have been several incidents in which Mr W has assaulted members of the community and he had to pay compensation to those people to avoid further problems. Mr W was physically abusive to his mother when she refused his demands for money. Both applicants referred to Mr W’s actions in forcing Ms [H] off their property in [Village 3] village, stating that she was constantly harassed and threatened and her dog was killed.
Regarding the dispute over the land in Port Moresby purchased in 2015, the applicant stated that this involved another member of her husband’s tribe. She confirmed that he is not a relative of her husband’s and is unsure of why he claimed their land. In his oral evidence to the Tribunal, the second applicant stated that this man, who is from the broader Jika tribe, had also purchased land in the same area of Port Moresby and was seeking to claim their land. He agreed that this was not connected to the issues with his family.
I discussed with the applicant in accordance with s 359A of the Act that, according to the Department’s movement records, after arriving in Australia in January 2015 she returned to PNG on 10 occasions. Asked why she returned to PNG so frequently if she feared harm from her husband’s relatives at the time of her first arrival in 2015, the applicant stated that her mind was unsettled because of the death of her son. She was still traumatised from this when she arrived in Australia and did not want to lose her connection to him. She felt the need to return to visit his grave. She tried to avoid her husband’s family during these visits. She stayed with her family in [Village 1] village, and they drove her to [Village 2] village to visit her son’s grave. During her final trip in 2019, she did not return to [City 1] as she didn’t feel safe to do so.
Asked about the delay in applying for protection, both applicants responded that they did not initially intend to remain in Australia. The applicant stated that it was only after her last trip to PNG in January 2019 that they decided to not return as the threats from her husband’s family had escalated. Asked why they could not move to [Village 1] village to live with her family, the applicant stated that as a matter of custom she could not live in her village as her husband is from another part of [City 1]. It would not be acceptable for her to return to [Village 1] with her husband. Her sister was able to return to [Village 1] village last year with her family because her husband is from the same area.
Regarding the possibility of relocating to Port Moresby, both applicants stated that they do not think they could live safely in Port Moresby. Aside from the 2015 land dispute and generalised crime in Port Moresby, they both referred to Mr N’s son living in Port Moresby. They fear that their presence in Port Moresby would become known to the second applicant’s relatives in [City 1] and they would continue to be targeted.
FINDINGS AND ASSESSMENT
The issue in this case is whether any of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the AAT Guidelines on the Assessment of Credibility and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1]In the circumstances I have also had regard to the AAT Guidelines on Vulnerable Persons which define a vulnerable person as a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed. Relevant factors can include a person’s experiences of physical or psychological abuse and trauma, including victims of physical violence.
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
I find the applicant’s claims regarding harm from her husband’s relatives to be overall credible. These claims have remained generally consistent throughout the protection visa and review process and are supported by the second applicant’s evidence. Based on her appearance before the Tribunal, I am satisfied that the applicant’s oral evidence was based on her genuine lived experiences.
The applicant has provided supporting documentary evidence of a serious physical assault in August 2011 in the form of a medical report which I accept to be genuine. She has also provided to the Tribunal supporting statements from [Mr A] and Ms [H] as outlined above. While I did not consider it necessary to take oral evidence from [Mr A] or Ms [H], I note that their contact details were made available to the Tribunal. [Mr A]’s statement supports the applicant’s claim that her husband’s relatives, particularly Mr N and Ms T, were targeting her for tribal and political reasons. Ms [H]’s statement supports the applicant’s claim of ongoing threats toward the applicant and her family by some of her husband’s relatives. This is further supported by the text message from the applicant’s ‘father’, being her uncle who raised her.
Further, the applicant’s claims accord with independent country information regarding the prevalence of inter-tribal and gender-based violence in PNG, particularly in the Highlands region. According to DFAT, tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting, and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.[2]
[2] DFAT, Country Information Report Papua New Guinea, September 2022, p 12
Land disputes are a common catalyst for unrest in PNG. Ninety-seven per cent of land in PNG is customarily held. Conflict typically escalates from territorial disputes into violence, with some incidents being ‘payback’ for previous incidents. While inter-tribal conflict has historically occurred, especially in the Highlands region, observers suggest that such violence has become markedly worse in the last few years due to the increasing prevalence of high-powered firearms, the willingness to target the elderly, women and children, and the fact that conflict is less governed by customary law (which served to limit the extent and targets of violence) than in the past.[3]
[3] DFAT, Country Information Report Papua New Guinea, September 2022, p 12
Violence against women is very common, with PNG having amongst the highest rates of gender-based violence in the world.[4] Sources report that almost all women and girls in PNG will be subject to violence at some point during their lives. The most recent PNG Demographic Health Survey (2016-18) found that 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15. It has been reported that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of gender-based violence every year.[5] According to a 2023 Parliamentary Committee Inquiry on Gender Equality, gender-based violence is increasingly exponentially.[6] DFAT assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide.[7]
[4] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022; US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023;
[5] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022
[6] Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment, Inquiry into gender equality policies and institutions, gender-based violence and sorcery accusation related violence, October 2023, p.13
[7] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022
Considering the above, I accept that the applicant experienced several incidents of targeted harm between 2008 and 2015 from her husband’s relatives, as outlined above. I accept that this was primarily related to tribal and political issues and was exacerbated by the death of Mr S’s brother in October 2014 and the applicant’s departure to study in Australia, accompanied by her husband and children. I acknowledge that some of these incidents may be viewed as lower-level family disputes. However, I find the incident in August 2011 to amount to a serious incident of family violence. Considering the overall pattern of conduct, I do not agree that the 2011 assault can simply be characterised as an ‘isolated situational incident’. I accept that the applicant was targeted because of her gender and tribal/family connections.
While I accept the applicant’s claims regarding the circumstances of her younger son’s death, I am not able to make any finding as to whether this had any connection to the issues with her husband’s family or tribe. However, I accept that the applicant genuinely believes there is a connection. I acknowledge that this incident has been a source of significant trauma for the applicant and that she arrived in Australia only a few months afterwards. I accept that she had very little time to process the incident or grieve for her son before departing. In these circumstances, I have not placed any adverse weight on the applicant’s frequent return travel to PNG between January 2015 and January 2019. I accept that she was grieving the death of her younger son and felt a need to return to [City 1] to visit his grave. I accept her evidence to the Tribunal that during these return trips, she stayed with her family in [Village 1] village and attempted to limit any contact with her husband’s relatives.
The available evidence indicates that Mr W is mentally unstable and has been violent to several members of the local community and his mother. While I acknowledge that Mr W’s violence does not solely target the applicant, I accept that that he has made threats toward the applicant and her family, and his recent conduct caused the applicant’s sister to leave the property in [Village 3] village.
I accept the evidence of the applicant and second applicant regarding the Port Moresby land dispute in 2015. However, the available evidence indicates that this was not directly related to the issues involving her husband’s family.
I have not placed any adverse weight on the delay in applying for protection. I acknowledge that the applicant held a valid Student visa from January 2015 until August 2019 and did not initially intend to apply for protection in Australia. I accept that following an escalation of threats from around early 2019, she decided to pursue a protection visa to remain in Australia.
Refugee criterion assessment
Based on the applicant’s circumstances, I find the applicant’s ‘home area’ of place of likely return to be [City 1]. This was her previous place of residence and the area where her family continues to reside. Considering my findings above, I am satisfied there is a real chance, being a possibility that is not remote or far-fetched,[8] that the applicant would face harm in [City 1] from her husband’s relatives in the reasonably foreseeable future.
[8] Chan Yee Kin v MIEA [1989] HCA 62
While I accept the applicant’s evidence that it would not be customarily acceptable for her to return to [Village 1] village given her marital circumstances, I am satisfied that the real chance of harm would extend to that area, given its proximity to her husband’s village and the likelihood that her husband’s family would be aware of their return within the [City 1] area.
PNG is a patriarchal society, where women are traditionally dependent on a male partner or guardian for their economic and physical security.[9] I acknowledge that the applicant would be returning with the support of her husband and adult son and has several uncles and brothers in the [City 1] area. However, considering that these supports did not previously prevent her experiencing harm, I am not able to be satisfied that they would offer her adequate protection against future harm from her husband’s relatives.
[9] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 24
I have therefore considered whether the real chance of harm relates to all areas of PNG, as required by s 5J(1)(c). According to DFAT, people can and do regularly migrate to cities, either in search of economic opportunities or to escape tribal and other violence or natural disasters. Around 50 per cent of Port Moresby’s population is estimated to comprise internal migrants residing in informal settlements.[10] I accept the applicants’ evidence that Mr N’s son resides in Port Moresby and this may increase the risk that their residence in Port Moresby would become known to her husband’s relatives. This is generally supported by information from DFAT that inter-tribal conflicts often affect transmigrated populations in other parts of the country and members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present.[11]
[10] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 24
[11] DFAT, Country Information Report Papua New Guinea, September 2022, p 12
DFAT further state that:
Exacerbated by the widespread take-up of mobile phones and social media, and the presence of diaspora from other parts of PNG (most especially in Port Moresby which one source referred to as ‘Little PNG’), those who relocate are often recognised in their new home and this information will typically be communicated to their place of origin. This may present a continuing threat to those attempting to escape violence.[12]
[12] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 24
While the chance of harm may not be as high outside [City 1] and Port Moresby, considering the above I am satisfied there is at least a real chance of harm throughout PNG.
While a refugee protection reason was not expressly submitted, I am satisfied from the accepted facts that the applicant’s fear of persecution is for reasons of her membership of a particular social group which may be described as ‘Women in PNG who have experienced tribal and family violence’. I find this group to satisfy the definition in s 5L as the characteristics of gender and tribal affiliations 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. I find this to be the essential and significant reason for the persecution, as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group and is non-random. I find the persecution to involve serious harm, as required by
s 5J(4)(b), as the harm includes significant physical harassment or ill-treatment.
Considering country information regarding the effectiveness of state protection in PNG, together with the applicant’s past experiences of seeking police assistance, I am satisfied that effective protection measures, as defined in s 5LA, would not be available to the applicant. DFAT reports that the effectiveness of the Royal Papua New Guinea Constabulary (RPNGC), the national police force responsible for the investigation of crime and maintaining internal security, is severely limited by resource and staffing constraints. The police are routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC.[13]
[13] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 22
Domestic and international sources report that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases. Police officials admitted that police could not keep women and children safe and lacked resources for thorough investigations.[14]
[14] US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023
The above information is generally consistent with the applicant’s experience of seeking assistance from the police following the incident in 2008 involving Mr S. She was directed to resolve the matter at the village level and the matter was resolved by payment of a small amount of compensation which did not deter Mr S from assaulting the applicant in 2011.
I find that the applicant 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, I am satisfied 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, I 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.
Second, third and fourth applicants: members of the same family unit

As discussed above, I am satisfied that the second applicant is the husband of the first applicant and the third and fourth applicants are her biological children. I find that the second applicant and fourth applicant (currently [age] years old) are members of the same family unit as the applicant.
The third applicant is currently [age] years old. For a child between 18 and 23 years old, Regulation 1.12 requires that they are ‘dependent’ on the family head or spouse of the family head, with ‘dependent’ being defined as ‘wholly or substantially reliant on the other person for financial, psychological or physical support’.
Based on the applicant’s oral evidence to the Tribunal, I accept that the third applicant lives in their family home while studying at a technical college and substantially relies on her and the second applicant for financial and emotional support. I am satisfied that the third applicant is dependent on the applicant and second applicant and therefore is a member of same family unit as the applicant.
Conclusions
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) of the Act. I am satisfied that the second, third and fourth applicants are members of the same family unit as the applicant and will therefore 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:
·the applicant meets s 36(2)(a) of the Act; and
·the other applicants satisfy s 36(2)(b)(i) of the Act, on the basis of membership of the same family unit as the applicant.
Date of hearing: 12 March 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

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