2208614 (Refugee)
[2025] ARTA 1574
•12 June 2025
2208614 (REFUGEE) [2025] ARTA 1574 (12 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2208614
Tribunal:General Member M Bailey
Date:12 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 the first named applicant and second named applicant meet the following criterion:
·s 36(2)(a) of the Migration Act
Statement made on 12 June 2025 at 9:30am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – single women – victim of family violence – fear of killing – sorcery-related deaths – threats of intimate image abuse – coercive control – gender-based violence – return visits to Papua New Guinea – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA [1989] HCA 62
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 3 June 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 4 November 2019. The delegate refused to grant the visas on the basis that the first named applicant (applicant) does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The delegate was satisfied that the second named applicant (second applicant), then [age] years old, is the daughter of the applicant and is wholly or substantially reliant on the applicant for financial, psychological or physical support and therefore a member of the same family unit as the applicant. However, given the applicant was found to not engage protection obligations, the second applicant was found to not satisfy s 36(2)(b) or s 36(2)(c) of the Act.
The applicants were represented in relation to the review. The applicants appeared before the Tribunal at the Brisbane Registry on 12 May 2025 to give evidence and present arguments. Their representative attended by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (Papua New Guinea) and English languages.
BACKGROUND
The applicant, [an age]-year-old female, and the second applicant, currently [age] years old, are mother and daughter. Both were born in Papua New Guinea (PNG). A copy of the second applicant’s PNG birth certificate was provided to the Department of Home Affairs (Department). As noted in the delegate’s refusal decision, this document records the applicant as the biological mother of the second applicant.
The applicant travelled to Australia on [Visitor] visas from October to November 2010 and January to April 2014. She first arrived on a Student (subclass 500) visa [in] March 2017. Between November 2017 and July 2019, she departed Australia for return visits to PNG on five occasions. Her final arrival in Australia was [in] July 2019. The second applicant last arrived in Australia [in] August 2019 on a Visitor visa. She had travelled to Australia on Visitor visas on three previous occasions in 2014, 2017 and 2018.
The applicants presented their PNG passports to the Department in support of the protection visa application. The delegate was satisfied that the applicants are citizens of PNG and there is no information before me to the contrary. I am satisfied that the applicants are citizens of PNG and PNG is their receiving country for the purposes of assessing their protection claims.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant was represented in relation to the protection visa application by a registered migration agent. Relevant biographical details for the applicant as recorded in the protection visa application and supporting statements are outlined below:
i.She was born in [Town 1], Eastern Highlands Province. Her family are from [Village 1] in [District 1] and are part of the [ethnic group 1]. Her residential address since 1992 is recorded as Port Moresby.
ii.Her relationship status is ‘Married’ with the date of marriage recorded as [month specified]. Her family members (in addition to the second applicant) comprise her husband, [Husband A]; her son, [Son A], born in [specified year]; and her daughter-in-law and grandson; all of whom reside in Port Moresby.
iii.She completed high school in Port Moresby in [specified year]; a [Qualification 1] from [a named] College in [year]; and a [Qualification 2] in Port Moresby in [year]. She commenced a [Qualification 3] in [year] and a [Qualification 4] in 2016 but did not complete either course.
iv.She was employed as [an occupation 1] with [Authority 1] between [specified years] and as [an occupation 2] with a [business] in Port Moresby between 2014 and 2015.
The applicant’s protection claims were detailed in a statement dated 1 November 2019. In summary she stated that she left PNG to study in Australia. While in Australia a lot of sorcery-related deaths occurred in her family, which put her life at risk. She was being targeted because of jealousy and envy as her family are well-educated and have opportunities to travel overseas. Her life, and that of her husband and children, has been threatened following the sorcery-related death of her niece, who shares a similar name to her, on [a day in] April 2019. Her niece committed suicide, which they suspect occurred on the orders of the ‘[Group 1]’ sorcery group. A copy of a death certificate for the applicant’s niece was submitted recording her date of death as [that day in] April 2019 and cause of death as asphyxia due to hanging. At mediation talks in Port Moresby [in] July 2019 her husband and children were threatened by the [Group 1] group.
The applicant’s husband provided six supporting statements dated 21 October 2019, 27 October 2019, 3 February 2020, 31 July 2020, 14 February 2022 and 18 February 2022. These reiterate the applicant’s claims to fear harm due to targeting by the [Group 1] sorcery group for reasons of jealousy and envy because of their family’s progress and opportunities.
The applicant’s brother provided a statutory declaration dated 18 February 2022 stating that sorcery has been practised in their society for many years and their family has been targeted by sorcery groups, resulting in several deaths. Additional supporting documents were submitted, including a letter from a police officer dated [in] October 2019, statement from a cousin dated 4 November 2019 and information regarding the family’s ownership of four properties in PNG. The applicant’s representative provided written submissions dated 17 February 2022 asserting that the applicant and her family are at risk of harm from [Group 1], a local criminal sorcery group, because they are wealthy landowners who can afford to travel and study overseas.
The applicant attended an interview with the delegate via videoconference on 24 February 2022, accompanied by her representative. Relevant evidence from that interview is summarised below:
i.The applicant resided in Port Moresby since around three years of age. She last visited her village of [Village 1] in 2010. Her husband’s family is from a neighbouring village.
ii.The applicant’s father passed away in 2015. Her mother continues to reside in the family home in Port Moresby. The applicant has [number] siblings: [number] reside in Port Moresby and [one] sister resides in Australia as a citizen.
iii.Her husband, their son and his partner and child reside in the same house in Port Moresby. Her husband works as an [occupation 3] with [Employer 1].
iv.Regarding her niece’s death, the applicant stated that she was the target of the sorcery group but as she was in Australia at the time, they mistakenly killed her niece who shares a similar name to the applicant. She was warned that if she returned to PNG, she would be killed. She reiterated that she was being targeted because of animosity due to her success and ability to travel overseas.
v.Asked why she returned to PNG [in] July 2019, three months after her niece’s death, if she was being targeted the applicant responded that she returned with her sister because of her nephew’s death and remained in the house.
vi.Asked whether her husband or other family members had been harmed following the mediation meeting in July 2019, she stated no but they had been followed and spied upon and they took precautions.
vii.Asked why she waited until November 2019 to apply for protection, the applicant stated that she needed to wait to bring her daughter to Australia for safety and lodge a combined application.
viii.The applicant confirmed that she feared returning to PNG because of the [Group 1] sorcery group. Prior to the conclusion of the interview, she was given the opportunity to speak in private with her representative and when the interview resumed was given the opportunity to raise any further claims with the delegate. The applicant reiterated that her fears related to the sorcery claims as outlined above.
In refusing the application, the delegate did not accept any of the applicant’s sorcery-related claims to be credible and found there to be no real chance or real risk of harm in connection with sorcery if the applicant were to return to PNG.
Evidence before the Tribunal
Pre-hearing evidence
On 5 May 2025 the applicant’s current representative submitted a statement summarising information provided by the applicant during a phone consultation. She stated that she has left her husband because of domestic violence. She experienced regular abuse and violence from her husband throughout their relationship. She tried many times to leave the relationship but did not feel free to do so as her husband had paid a bride price and gained favour with her family by spending money on her uncle. Prior to departing for Australia in 2017 on a Student visa, her husband continued to be violent. She sustained injuries from this violence but did not access medical services. Her husband paid for her studies in Australia with the expectation that she would return and repay the money. She did not complete the course. She fears that her husband will harm her if she returns to PNG. He has been sending her threatening text messages. The representative notes that due to a lack of accredited Pidgin interpreters, the text messages have not been translated.
A statutory declaration by the applicant dated 6 May 2025 was submitted stating that:
i.She stands by the sorcery claims made in her protection visa application. Her husband was betrothed to a woman from his village but married the applicant instead. This woman told a sorcerer to kill the applicant so that she could marry her husband. However, instead of taking the applicant’s life, they took her niece’s life.
ii.Her ex-husband is sending threats via text message and phone because he paid a bride price to her family and feels that he owns her. He is demanding that she return to PNG and repay the loan of [amount] PNG Kina (approx. $[amount] AUD) that he took out to fund her studies in Australia.
iii.Her husband wanted her to come to Australia on a Student visa so that he could later join her and work. When his Tourist visa application was refused, she saw this as her chance to tell him that she was not returning to PNG which made him very angry.
iv.While she has been studying in Australia, her husband called daily to check on her. If she did not answer, he accused her of cheating on him. This jealousy started back in PNG and caused her to stop working as [an occupation 1]. She has not answered her husband’s calls for almost four months.
Evidence from Tribunal hearing
The applicant confirmed that her family details as provided to the delegate remain correct, except that her mother is currently in Australia for three months on a Visitor visa. Prior to commencing a relationship with her husband in 1994, she was in another relationship from around [year]. She had a daughter from this relationship who was raised by the applicant’s mother.
Her husband continues to reside in Port Moresby with their son, [Son A], who is currently [age] years old. Her son is not working and is financially supported by his father. Asked about the status of her relationship with her husband, she stated that they separated in late 2022 or early 2023. The last time she spoke with her husband was about four months ago; he called her daughter and told her to put her mother on. She maintains contact with her son via WhatsApp.
The applicant stated that since arriving in Australia in March 2017 on a Student visa, her husband came to Australia several times to ‘monitor her’ as he was always suspicious of her. She recalled that his last visit was in 2021 and stated that his last three Tourist visa applications have been refused.
Regarding the sorcery claims raised with the Department, the applicant stated that in 2023 she learnt that this was related to a woman (‘[Ms A]’) from her husband’s village to whom he had been betrothed prior to their marriage in 1994. Her husband previously told her it was due to jealousy and envy but in 2023 confirmed to her that [Ms A’s] family had hired sorcerers to target her which mistakenly resulted in her niece’s death in 2019.
I discussed with the applicant that there was a time difference of around 25 years between her marriage to her husband and the death of her niece. Asked why [Ms A’s] family would wait until 2019 to target her, the applicant stated that [Ms A] never married and has remained in the village waiting for her husband who has been financially supporting her for years as a matter of custom. When her husband loaned [amount] Kina in 2017 to fund the applicant’s studies in Australia, this made [Ms A] jealous and led to the sorcery targeting. Subsequently in the hearing the applicant stated that [Ms A] is her husband’s niece.
Regarding the new claims relating to domestic violence, the applicant stated that this was occurring throughout the relationship with her husband, and he did not treat her well. He complained that, despite paying a bride price, she was not a virgin when they married. She suffered [number] miscarriages during the marriage. Her family, including her brother, never stood up for her because her husband had paid a bride price. Her husband has sent her threatening and abusive messages since her first arrival in Australia as he suspected she was having affairs. He sends these messages via her daughter because she won’t respond to him. She stated that she provided these messages to her representative. Her son told her that her husband is now in another relationship and has threatened to harm her if she returns to PNG.
I discussed with the applicant that she made no reference in her evidence to the Department of any domestic violence from her husband, despite being represented by a registered migration agent and attending a confidential interview with the delegate at which her husband was not present. I explained that this may cause me to have concerns regarding the credibility of these claims. The applicant responded that her husband was very controlling, had access to her email and social media, and had threatened her and her family. She was fearful of raising these claims with the Department.
I raised with the applicant that, according to her evidence to the Tribunal, her husband financially supported her Student visa application and provided a substantial amount of supporting evidence for her protection visa application. Asked why he would do so if he was abusive and wanted her to return to PNG, she stated that he wanted her to be granted protection so that the rest of the family could come to Australia and the children could study in Australia.
I discussed with the applicant that she returned to PNG multiple times since her first arrival in 2010, including five return trips to PNG since arriving on a Student visa in March 2017. I explained that this may cause me to have concerns about the credibility of the domestic violence claims. She responded that she returned because of her children; her husband was also abusive toward them, and she waited to apply for protection until she knew her daughter was safe.
The second applicant, who was not present during her mother’s evidence, provided witness evidence in support of her mother’s claims. She stated that, while she resided in Port Moresby with her father, he was always suspicious of what her mother was up to in Australia. Following her arrival in Australia in 2019, her mother decided to not return to PNG. Her father still texts to ask about her mother and makes offensive and threatening comments such as accusing her mother of being a prostitute and threatening to cut her with a knife. He gets angry that her mother does not return his calls.
Her father had access to her mother’s email and Facebook account. When she changed the passwords, her father threatened that if she didn’t send him the new passwords, he would post intimate photos of her mother on Facebook. He once did post intimate photos of her mother on Facebook. In March 2025 he threatened her if she was hiding anything about her mother and is always asking her to report on her mother. The second applicant stated that she often saw her father being physically abusive toward her mother while they lived in Port Moresby.
I explained to the applicants that I had not received any documentary evidence of text messages. The representative confirmed that this material had been sent to him but includes untranslated messages and does not contain evidence of domestic violence in PNG. After confirming with the applicant that she wished for this material to be submitted, I allowed an additional period following the hearing for the provision of this evidence.
Post-hearing evidence
On 16 May 2025 the representative submitted three emails containing screenshots of 116 text messages dated between August 2021 and March 2025. The majority are between the second applicant and her father. The remainder consist of messages between the applicant and her husband or social media postings made by the applicant’s husband. The representative states that these were not previously submitted as they relate to the applicant not contacting her husband rather than evidencing domestic violence in PNG.
I have reviewed all the messages. While some of the content is in Pidgin, a significant amount is in English. In summary, the English content of the messages evidences the following:
i.Frequent attempts by the applicant’s husband to contact her and, when she didn’t answer, demands that the second applicant get her mother to call him or tell him of the applicant’s whereabouts. Many of the messages demand to know why the applicant has turned off her phone and is not responding to him and accuse her of having affairs. Some of the messages refer to her husband monitoring her movements by asking people to check that she was at home when her work roster indicated that she was not working on a particular day.
ii.Several of the messages indicate that the applicant’s husband was monitoring her phone calls, email and social media accounts. For example, in July 2022 her husband stated that he is aware of more than 50 daily calls to the applicant’s mobile from her ‘two lovers’. He demanded that the second applicant send him an updated password for the applicant’s Facebook account and threatened to upload nude photos of the applicant if the password was not provided. In April 2023 he asked the second applicant to try calling a particular phone number which he is aware the applicant has been calling on a regular basis and believes belongs to her ‘lover’.
iii.Frequent accusations that the applicant was having affairs with other men in Australia, including with a named [Nationality 1] man and an Aboriginal man. Messages from July 2022 state that the applicant’s husband called the Aboriginal man and got him to admit to the affair. He demanded that the second applicant call two phone numbers and report to him who answered. He stated that his head is ‘blowing up’; the applicant has caused him so much pain and stress and has ‘gone terribly wrong’ and threatened that he would do ‘something bad’ or ‘extreme’. He states that the applicant has made him ‘so mad’ with her affairs and her stated intention to legally marry in Australia and change her surname.
iv.Frequent threats to upload intimate photos of the applicant to Facebook to embarrass her or to publicise negative information about the applicant online. For example, a November 2021 post on her husband’s Facebook page titled ‘[title]’ includes multiple photos of the applicant and states that ‘this [person] is a pokies addict in Australia and a [person] in the [specified] business with multiple business partners’. Messages from June 2022 accuse the applicant of uploading ‘bad pics to her [lover]’ which has brought shame to him and the family. He threatened to upload nude photos of the applicant to Facebook and to ‘reactive’ her Facebook account and upload her ‘modelling pics’. In October 2022, he threatened to expose the applicant on Facebook because he suspects she reported him to immigration causing his visa to be refused.
v.Multiple threats to contact the Department and the Tribunal to ‘expose’ both applicants and have them deported.
vi.Offensive and derogatory comments toward the applicant (and at times toward the second applicant), such as calling her a ‘prostitute’, ‘useless garbage’, a ‘deceitful crazy crap/crab’, a ‘liar and pretender’, a ‘disgrace’ and a ‘public toilet’.
The above evidence also indicates that these messages caused a significant degree of distress to the second applicant, who repeatedly asked her father to stop contacting her or involving her in his disputes with the applicant.
FINDINGS AND ASSESSMENT
The issue in this case is whether either of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
I have significant concerns with the applicant’s claims relating to sorcery-related targeting. I acknowledge that there is a strong belief throughout PNG in the power of the supernatural, in particular the ability of ‘witches’ or ‘sorcerers’ to use magic. This belief is prevalent in both rural and urban areas and applies across socio-economic backgrounds.[2] However, I do not consider the applicant’s explanations to the Department or the Tribunal for why she was specifically targeted by sorcerers or the mistaken targeting of her niece in 2019 to be plausible. Further, I find her return to PNG shortly after her niece’s death in circumstances where she claims her life was under threat, to undermine the credibility of these claims.
[2] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 18
For the reasons discussed with the applicant at the hearing, there are credibility concerns with the claims relating to domestic violence from her husband. However, I have taken account of the oral evidence of both applicants to the Tribunal, which I found to be overall plausible and convincing and to accord with the text messaging evidence. I have also taken account of the substantial documentary evidence submitted following the hearing, to which I have given significant weight. While it may not amount to direct evidence of past domestic violence in PNG (as submitted by the applicant’s representative), I am satisfied that it amounts to probative evidence of significant ongoing harassment, threats and intimidation, monitoring and surveillance, and online abuse and humiliation by the applicant’s husband over a period of almost five years. As noted in the National Domestic and Family Violence Bench Book (DFV Bench Book), these are common behaviours used by perpetrators as part of coercive control.[3]
[3] National Domestic and Family Violence Bench Book, Home | AIJA
According to the DFV Bench Book, these abusive behaviours are designed to deprive the victim of privacy, autonomy and a sense of safety. They may occur while the perpetrator and victim are in an intimate relationship or commence or intensify upon separation. The perpetrator’s detailed knowledge of the victim’s workplace, family, friends, daily routines, online activities, concerns and fears enables the perpetrator to employ an array of abusive tactics that may be overt and intimidating (for example, letting the victim know they are being watched) or covert and thus difficult for the victim to anticipate, detect or trace (for example, amassing information about the victim’s movements that can later be used to monitor, threaten or humiliate the victim). Where the perpetrator and victim have children in common, the children may also be co-opted to facilitate abuse, for example, through sharing a parent’s passwords.[4]
[4] National Domestic and Family Violence Bench Book, Home | AIJA
I find the behaviours of the applicant’s husband while she has resided in Australia to be indicative of a pattern of behaviour and consider it plausible that he was abusive toward the applicant in PNG. In the circumstances I find the applicant’s explanation to the Tribunal as to why she did not raise these claims with the Department to be reasonable. I accept that, given her husband’s monitoring and surveillance of her communications, she was fearful of disclosing these claims. I have not placed any adverse weight on her frequent return trips to PNG considering that her children continued to reside in Port Moresby with her husband. I also acknowledge, considering the country information discussed below, that the prevalence of domestic violence in PNG may have normalised this behaviour for the applicant.
Various sources report that violence against women in PNG is very common, with PNG having amongst the highest rates of gender-based violence in the world.[5] 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.[6]
[5] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022; US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023;[6] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022
Patriarchal cultural and societal traditions in PNG, including payment of a bride price, can create a sense of ‘ownership’ of wives and entitlement on the part of a husband, which may be considered as permitting family violence.[7] DFAT assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide.[8]
[7] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
[8] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022
According to a report by the US Department of State, gender-based violence including sexual violence, gang rape, and intimate-partner violence, was a serious and widespread problem. Approximately two-thirds of women have reportedly been beaten by their partners. Although the law also criminalizes family violence and imposes maximum penalties of two years’ imprisonment and monetary fines, it was seldom enforced. While the law also criminalizes intimate-partner violence, it nonetheless persisted throughout the country and was generally committed with impunity.[9]
[9] US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023
Considering the above, I accept that the applicant experienced domestic violence from her husband while in PNG and has continued to be subject to abusive and threatening conduct from her husband while in Australia. I accept that the applicant separated from her husband in around late 2022/early 2023.
Refugee criterion assessment
Based on the applicants’ circumstances, I find that if they were to return to PNG, they are likely to return to Port Moresby, being their previous place of residence. For the reasons below, I am satisfied there is a real chance, being a possibility that is not remote or far-fetched,[10] that the applicants would face harm in Port Moresby in the reasonably foreseeable future.
[10] Chan Yee Kin v MIEA [1989] HCA 62
Considering the history of domestic violence and ongoing threats following their separation, I am satisfied that the applicant faces a real chance of harm from her husband if she were to return to Port Moresby. As noted in the DFV Bench Book, where violence has occurred during an intimate relationship it is common for perpetrators to continue or escalate the violence after separation in an attempt to gain or reassert control over the victim or to punish the victim for leaving the relationship. Where women leave an intimate relationship and continue to experience violence after separation, their former partner may experience an intense sense of loss of control and the violent response may be severe, life-threatening, or lethal. A strong correlation has been found between separation and homicide.[11]
[11] National Domestic and Family Violence Bench Book, Factors affecting risk: Factors affecting risk - National Domestic and Family Violence Bench Book
Further, I am satisfied that both applicants face a real chance of harm in Port Moresby as single women without adequate male protection. PNG is a patriarchal society, where women are traditionally dependent on a male partner or guardian for their economic and physical security.[12] According to DFAT, violent and petty crime are common in PNG, especially in Port Moresby and other urban centres. Robbery, assault, sexual assault and gang rape, and property crimes are all relatively common. Informal settlements in and around towns and cities are particularly dangerous. Women face a much greater risk of sexual assault and robbery.[13]
[12] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 24
[13] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022
Male family members and ‘wantok’ – the system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society – generally offer some protection to women and children.[14] I acknowledge that the applicant’s adult son and brother reside in Port Moresby. However, her son resides with and is financially supported by her husband and I accept the applicant’s evidence that her brother has previously refused to defend her or intervene in her marital problems. The presence of her son and brother did not prevent previous domestic violence from her husband. In regard to the second applicant, the text messaging evidence indicates that her father’s behaviours have caused animosity between them, and he perceives his daughter as supporting or protecting her mother. I am not satisfied that the applicants would have male support in Port Moresby of the level and nature that would offer them meaningful protection as single women.
[14] Nanau, G., The Wantok System as a Socio-Economic and Political Network in Melanesia, June 2011, OMNES The Journal of Multicultural Society 2(1): 31-55; Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022
I have therefore considered whether the real chance of harm relates to all areas of PNG. Considering the past harm and ongoing threats from her husband, I am satisfied that the applicant would face a real chance of harm from him in all areas of PNG. DFAT reports that, exacerbated by the widespread take-up of mobile phones and social media, persons who relocate to avoid gender-based violence are often recognised in their new area and this information will typically be communicated to their place of origin. This may present a continuing threat to those attempting to escape violence.[15] Further, I am satisfied that both applicants would be residing without adequate male support or protection in all parts of PNG. Considering the prevalence of gender-based violence throughout PNG and the patriarchal nature of PNG society, I am satisfied there is a real chance that the applicants would experience gender-based violence in all areas of PNG.
[15] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 24
I am satisfied that the applicants’ fear of persecution is for reasons of their membership of a particular social group which may be described as ‘Single women in PNG’ or ‘Single women in PNG without male protection’. I find these groups to satisfy the definition in s 5L as the characteristics of gender and familial or relationship status are shared by each member of the group, including the applicants; are not a fear of persecution; and are innate or immutable or distinguish the group from society. I find this to be the essential and significant reason for the persecution, as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group and is non-random. I find the persecution to involve serious harm, as required by s 5J(4)(b), as the harm includes threats to their life and significant physical harassment or ill-treatment.
According to country information, women who are subject to gender-based violence in PNG are unlikely to be able to avail themselves of adequate state protection. DFAT reports that although significant attention has been directed to the level of gender-based violence in PNG by the national government and NGOs, the police response remains inadequate. While the Royal Papua New Guinea Constabulary (RPNGC) lacks the capacity to respond to crime generally, its response to gender-based violence is especially lacking.[16]
[16] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
Domestic and international sources report that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases such as those involving attempted murder, serious injury or repeated rape. Statistics provided by the RPGNC between December 2017 and October 2018 showed 2,013 family and sexual violence (FSV) cases were reported in Port Moresby and the Central Province, resulting in 195 arrests and 11 convictions; that is, only 1 in 200 of reported cases resulted in a conviction.[17] Police officials admitted that police could not keep women and children safe and lacked resources for thorough investigations.[18]
[17] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
[18] US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023
FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. The RPNGC has made some progress in recent years with the establishment of FSV Units in every province. However, there are not enough FSV Units to respond adequately to the scale of the problem – there are only 106 FSVU officers across the country and they are typically subject to the same resource constraints as the rest of the RPNGC.[19]
[19] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
Considering the above, I find that effective protection measures, as defined in s 5LA, would not be available to the applicants. I find that the applicants could not take reasonable steps to modify their behaviour to avoid a real chance of persecution. Such modification would fall within the exception in s 5J(3)(b) of concealing an innate or immutable characteristic.
For the above reasons, I am satisfied that the applicant and second applicant have a well-founded fear of persecution in PNG and are refugees within the meaning of s 5H(1) of the Act.
Protection in a third country
Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Based on the available evidence, I find that the applicants do not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
Conclusion
For the reasons given above, I am satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a) of the Act.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that the applicant and second applicant meet s 36(2)(a) of the Act.
Date of hearing: 12 May 2025
Representative for the applicants:Mr Brian Michael Kelleher (MARN: 0105197)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
…
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.
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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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ABC News, Study finds PNG women with more wealth, education experience higher levels of domestic violence, 23 February 2023
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