2401014 (Refugee)

2401014 (Refugee) [2024] AATA 2428 (3 May 2024)

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Danielle Munro
CASE NUMBER: 2401014

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Noelle Hossen
DATE:3 May 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 03 May 2024 at 2:37pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – women – people with HIV/AIDS – tribal violence – gender-based violence – employment – access to appropriate treatment – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 30 August 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person of whom Australia has protection obligations.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity and country of reference
The applicant was born on [date] in [Town 1], in the province of West New Britain, Papua New Guinea (hereinafter referred to as PNG). The applicant provided the Department with a copy of her Passport.
The applicant provided sufficient evidence to the Department of her identity and there is no information that raised any concerns. Therefore the Tribunal finds that she is a citizen of Papua New Guinea, and as such her claim will be assessed against Papua New Guinea as the country of reference and receiving country
Before the Department
The applicant filed her claim for protection on the on the 30 August 2023 and provided the following documents to the Department:
National Police Clearance – Royal Papua New Guinea Constabulary
Lower Secondary School Certificate
Upper Secondary School Certificate
Character Reference [named college]
Character Reference – [School 1]
Student Academic Transcript – [College 1]
[Airline 1] – E-Ticket, itinerary, receipts and Tax Invoice
[Airline 2] Itinerary
Various Photographs.
In her application for protection the applicant stated as follows:
The applicant left her home country to escape ethnic and tribal fighting and criminal activities taking place in West Britain Province that the applicant grew up in.
The applicant and her family went through traumatising situations on a daily basis due to the conflict in the community. There is no law and order.
She claimed that due to the unsafe situation she could not concentrate on her studies.
The applicant claimed that her father passed away in 2020 and her mother had to look after the family.
In early 2023 criminal activities increased, public transport was held up, houses were burnt, and the people were engaged in fighting which led to deaths.
As a result of the violence and crime her mother could not work to support her education and she found it hard to find employment.
She said that she could not move to another part of the country as she had no other forms of support other than her mother.
The Department requested that the applicant provide further information and the applicant did not respond to the invitation.
Before the Tribunal
On the 6 March 2024 the Tribunal wrote to the applicant and provided her with a Pre – hearing response Form to complete. The applicant returned the form duly completed on the 11 March 2024.
On the 13 March 2024 the Tribunal sent out a Hearing Invitation to the applicant. The hearing was due to take place on the 24 April 2024.The tribunal asked the applicant to complete a Hearing Response Form. The applicant duly completed the Form and provided the Tribunal with a letter of support from her social worker from [Hospital 1], collection of photographs and stated in her response that her aunt was available to give evidence if required at the hearing to corroborate the evidence of the tribal violence in PNG.
Due to technical difficulties with the availability of an interpreter the Tribunal was unable to conduct the hearing on the date. The applicant did file extensive submissions prior to the hearing from her representative.
The Tribunal concluded upon reading the submissions, letter from the social worker and all the other evidence that the Tribunal could deal with the Decision on the Papers to remit the matter.
The applicant provided further evidence which included a Statutory Declaration and a letter from her treating specialist from [Hospital 1].
The Tribunal has read all of the evidence and accepts the evidence contained in the letter from the social worker and the report from the Consultant from [Hospital 1].
Background and Claims
The applicant arrived in Australia on a tourist visa [in] July 2023. She was in Brisbane with her [relative] until the 23 July 2023. She went to live on a farm with her friend [Friend A].
She said that she grew up in the [named] Province. Her father passed away [in] December 2020 from [specified] illness. She has [specified siblings]. Her mother was left with the task of providing financially for the family.
She said that she was in a relationship, but the partner cheated on her and the relationship ended.
She finished [School] in [specified year] and graduated with a [Grade] Certificate from [School 1]. She then went to [University 1] in [year] to do a couple of units to improve her secondary school marks.
She then attended [College 1] in Port Moresby studying [subject 1]. She said that she studied for 2 years but could not complete the course due to financial issues as her mother was the sole provider for the family. The tribal violence affected her mother’s ability to earn a reasonable income.
She said that there was a lot of tribal violence in her hometown between the [named] Tribes. She said that her family do not belong to either tribe but live close to the border of [one tribal] territory. She said that inter-tribal fighting intensified in January 2023. The tribes burn down houses at night. She said that in September 2021 her next door neighbour’s house was raided, and the neighbour was nearly raped. She also set out some incidences of violence against herself and her family.
She applied for a Protection Visa because she feared for her safety in PNG due to tribal violence and crime on the [day in] August 2023.She filed her application with the assistance of her friend’s brother.
She received a letter from the Department on the 22 November 2023. She said that she did not respond as she was feeling ill.
She was diagnosed as HIV positive [in] December 2023 in Australia. She said that she attended hospital in [Town 2] as she was so weak that she could not walk.
The information regarding her diagnosis is confirmed in the letter from [Doctor A] who is the [position title] of [Hospital 1] in [location] Western Australia.
[Doctor A] describes her presentation as complex and stated that she was significantly immunocompromised, and her care was transferred to [Hospital 1] from [Town 2].
She has been a patient at [Hospital 1] since December 2023 and was diagnosed with HIV and Disseminated tuberculosis infection. She was prescribed [specified medications].
Her presentation was that she had low energy and poor appetite. The consultant stated in her letter that she was concerned about the timely accessibility of the medication in PNG. She said that there may be a development of resistance if there are treatment interruptions and that this would prove to be fatal.She was also concerned that she would be unable to access ancillary care as she presently has input from public health nurses, a dietician and a specialised HIV Senior Nurse.
She said that her visa was refused by the department on the 16 January 2024 after she had been diagnosed with HIV and tuberculosis. At the time that she lodged her Application for a protection visa she had not been diagnosed with HIV and tuberculosis.
She said that her mother, siblings and family do not know that she has been diagnosed with HIV. She said that people with HIV are ostracised in PNG. She would not be able to get a job. She said that even if she did get a job that they would terminate her employment if they found out that she was HIV positive.
She said that living with HIV would bring shame to her family. She said that if she is banished from her community, she would have no one to care for her and that she will be left to die.
She gave an example of a neighbour who has since passed away as she was diagnosed with HIV in 2015 and although her family had allowed her to stay in their home, she was illtreated and neglected and eventually died.
She said that the health system in PNG does not have infrastructure and supports in place for people living with HIV. She will be persecuted and discriminated against for being HIV positive.
The Tribunal accepts the evidence contained in her statutory Declaration, evidence in the report of her medical specialist and the evidence of the social worker.
Refugee Criterion
The applicant’s evidence which the Tribunal accepts is that she must keep her HIV status private from her family and the people living in PNG. The Tribunal accepts that if the applicant is to return to PNG that there is a real chance that she could not keep her HIV diagnosis private as she would have to attend clinic visits and obtain medication. In the circumstances the Tribunal is satisfied that her HIV diagnosis will become known in PNG and has assessed her claim on that basis.
In the DFAT country information report it states as follows:
Para 2.16 The country’s health system is fragile, with poor health and immunisation outcomes, and has been assessed by the WHO as among the 10 worst in the world.
Para 2.17 As at July 2022, the country officially had 662 Covid 19 related deaths, but observers said that the figure is much higher as testing in rural areas is extremely limited. PNG has the highest rates and number of HIV cases in the Pacific. Communicable diseases, including malaria, tuberculosis, diarrhoeal diseases, and acute respiratory disease are major causes of morbidity and mortality . Access to health care is extremely challenging for urban poor and rural remote communities.[1]
[1] DFAT country information Report Papua New Guinea 6 September 2022
The Tribunal accepts that the applicant may face difficulties accessing medical treatment as it is likely that she will have to remain in a rural area with her family. The Tribunal is satisfied that there is a real chance that the applicant will be unable to access appropriate treatment and the prevailing stigma and discrimination would prevent her from accessing treatment.
The Tribunal has considered whether the applicant’s claims fall within one or more of the refugee criteria. The Tribunal accepts the fact that the applicant is HIV positive that she belongs to a particular social group which is identifiable by the common attribute of being HIV positive. The Tribunal accepts that she belongs to a social group being “women living with HIV in PNG.
The Tribunal accepts that there is a real chance that the applicant’s HIV status will become known to her community and that she will be discriminated against, as a person living with HIV. She does not hold any qualifications. She had difficulty working whilst living in Australia according to her social worker because she was too ill. The applicant was also suffering from tuberculosis. The Tribunal accepts that women experience discrimination in the labour market in PNG and considers that the prospect of the applicant obtaining employment to be negligible. The applicant did not work whilst she lived in her home country.
The Tribunal has considered whether she would be able to relocate to other parts of the country, but the country information sets out that if she were to relocate to Port Moresby, there is a high risk that she will be unemployed and unable to care for herself. She will have to be reliant on her family for emotional, financial, and physical support who reside in a rural area. This may present as a problem with relocating to a city where she will not have support. She has friends who are supportive of her in Australia coupled with the support services from her social worker and medical team at [Hospital 1]. The Tribunal finds that it is unlikely that the applicant’s situation will be any different if she relocates to another province or city as the stigma of being HIV positive is prevalent in the whole of PNG.
The country information suggests that “women across PNG face a high risk of societal discrimination due to long standing values and gender roles which restricts their ability to fully participate in the community and workforce. DFAT assesses that women are unable to fully participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of social status. Women living in the highland’s provinces are at particular risk although violence against women occurs nationwide. Women who are subjected to gender-based violence are unlikely to avail themselves of adequate state protection or support services.”[2]
[2] DFAT country information Report Papua New Guniea 6 September 2022
The Tribunal accepts, having regard to the vulnerabilities of the applicant, coupled with stigma and discrimination directed against persons living with HIV in PNG, when considered cumulatively with the issues that she faces as a woman with HIV, living in PNG that this may have an adverse impact on her emotional wellbeing. Access to medical care would be limited in the rural areas where her mother lives. Her specialist has concerns regarding her ability to access the medication which could lead to a fatality. It is unlikely that the applicant will receive any support for her mental health as it is likely to be severely lacking in PNG.
There is a real chance that she will encounter discrimination and stigma from family and the community because she is a woman living with HIV. The Tribunal has considered whether the discrimination would amount to serious harm because of the discrimination, stigma, and economic hardship as a woman living with HIV in PNG. The Tribunal is satisfied that the discrimination that the applicant will experience because of her gender and her HIV status when considered cumulatively, that there is a real chance that it would amount to serious harm.
On the evidence before it the Tribunal is satisfied that the applicant does not have a right to enter and reside in any other country save for PNG.
Based on the country information the Tribunal is satisfied that effective state protection measures are inadequate, and that the applicant is unlikely to avail herself of it, being a woman living in PNG with HIV. Therefore, the applicant has a well-founded fear of persecution.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Noelle Hossen
Member

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.
…

[2024] AATA 2428

3 May 2024

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