2401147 (Refugee)

2401147 (Refugee) [2024] AATA 2949 (17 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2401147
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Mia Bailey
DATE:17 April 2024
PLACE OF DECISION:  Brisbane
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 17 April 2024 at 12:43pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – membership of particular social group – domestic violence by former partner – assaults and burns to body – interim protection order and application for permanent order – relocated but found by partner – oldest child taken without consent – continuing threats via friends – no application for protection during first business trip – medical and legal documentation not provided to department – different forms of names between documents – inconsistencies between written claims and oral evidence – application prepared by another person and applicant not informed of department’s request for documents – confusion and difficulty remembering dates – country information – family violence seen as private matter and laws rarely enforced – real chance of harm relates to all areas – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5L, 36(2)(a), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA [1989] HCA 62
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 (delegate) on 22 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 24 October 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 4 March 2024 to give evidence and present arguments. The applicant’s authorised recipient, [Ms A], attended the Tribunal hearing as a support person.
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. 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 ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background and receiving country
The applicant is a [Age]-year-old female from Port Moresby, Papua New Guinea (PNG). She first arrived in Australia on a Visitor (subclass 600 – Business visitor stream) visa [in] September 2023 and departed [in] September 2023. She arrived in Australia for a second time [in] October 2023.
The applicant provided a copy of the biodata page of her PNG passport as part of her protection visa application. The delegate accepted that the applicant is a citizen of PNG and there is no information before me to the contrary. I find that the applicant is a citizen of PNG, and that PNG is her receiving country for the purposes of assessing her claims for protection.
Evidence before the delegate
According to her protection visa application, the applicant’s religion is Christian; her relationship status is ‘separated’ and she has never studied or been employed. Regarding employment, she was a subsistence farmer and sold farm crops at the markets to support herself. No details are provided of any family members in Australia or overseas.
Regarding why she left PNG, she stated that she is seeking protection from ‘continuous domestic violence from her ex-partner’. He has ‘always assaulted, harmed and tortured’ her, causing her to fear for her life. She did not seek help in PNG because her ex-partner always threatened her that if she went to the authorities he would harm and kill her. She has no confidence in the authorities or protection laws in PNG. She once moved to Lae to hide from him, but he located her and harmed her for running away.
Regarding what she thinks will happen if she were to return to PNG, she stated that she would be ‘harmed and tortured as usual but this time to the extreme of being killed’ because her ex-partner is aware that she is in a relationship with another man in Australia. Her ex-partner is very bitter and has been continuously threatening her via her friends.
On 29 November 2023, the delegate wrote to the applicant under s 56 of the Act (s 56 letter) inviting her to provide additional information in support of her application, including details of her family members in Australia or overseas. The delegate noted that her application lacked details regarding her domestic violence claims, which may cause concerns about whether those claims are genuine. She was invited to provide further details and documentary evidence regarding those claims. No response was received from the applicant to the s 56 letter.
The applicant was not invited to attend an interview with the delegate. The delegate found, based on the lack of substantiating details in the application and the failure to respond to the s 56 letter, that her claims were not credible and rejected them in their entirety. The delegate therefore found that the applicant was not a refugee and did not engage complementary protection obligations.
Evidence before the Tribunal
Pre-hearing evidence
As part of her review application, the applicant provided the following documents:
Medical report
A report dated 16 November 2020 from [General Hospital] states that ‘[the applicant – previous surname]’ was examined by a nurse and claimed to have been the victim of a physical assault on the evening of 13 November 2020 by a ‘known armed aggressor’. Regarding general examination, the report states: ‘Ongoing IPV [intimate partner violence] and I feel like I am slowly losing my memories and I had enough’. Regarding somatic examination, the report refers to lacerations to the upper and lower lip and one ear and abrasions to the thigh and both feet.
Police report and photos
A report from the Royal PNG Constabulary (RPNGC) for ‘[the applicant – previous surname]’ made on 17 December 2018. The details of offence are recorded as ‘Torturing heated [object] burned on woman’s [body parts]’ and are stated to have taken place on the morning of [Date] December 2018 at ‘late [Mr B]’s premises’ at [Suburb 1].
Two photos depicting injuries to the back of a woman’s [body parts], which are consistent with the description in the police report.
Court documents
Several documents filed in the PNG Family Court, Port Moresby, relating to matter ‘IPO [Number] of 2020’ or ‘IPO [Number]/2020’ between [the applicant – previous surname] (complainant) and [Mr C] (defendant). These relate to applications for an Interim Protection Order (IPO) made [in] December 2020 and [Day 4] March 2021 and breach of IPO No: [Number] / 2020 filed on [Day 4] March 2021.
A sworn statement in support of the IPO application of [December] 2020 includes the following details:
i.The complainant is [Age] years old from Central Province.
ii.The defendant is her partner, an adult male from Central and East New Britain Provinces.
iii.They have been living together for [Number] years and have [children, ages].
iv.Several incidents of violence by the defendant toward the complainant between 2002 and 2020 are detailed, including an incident at the end of 2017 where the defendant used heated [object] to [burn her body parts] and an incident on [Day 1] November 2020 where he pressed a heated [object] against her [body part].
v.On [Day 2] November 2020, she took the children and sought assistance and they have been living at a ‘safe place’ since that time.
vi.On [Day 3] November 2020, the defendant came with the police to the safe house and threatened her. He was arrested by [Suburb 2] police but later released.
A sworn statement by the applicant dated [Day 3] March 2021 details 3 occasions where the defendant breached the IPO: [in] February 2021, [Day 1] March 2021 and [Day 2] March 2021. The incident on [Day 2] March 2021 involved the defendant coming by surprise to the house in which the defendant was staying and taking her eldest [child] without her consent.
Evidence provided at hearing
Regarding her protection visa application, the applicant stated that she did not complete the application herself. The person who completed the form was [Mr D], who she was referred to by friends. She paid about $200 to [Mr D]. She did not read the content of the application before it was lodged. [Mr D] verbally explained to her what was contained in the application. However, he did not provide ‘good information’ to her.
Regarding her family, her father passed away in 2002. Her mother lives in [Village 1], in Central province, which is her father’s village. She has 4 [siblings]: 3 brothers and 1 sister. One brother is currently in Australia on the seasonal worker program. Her other 2 brothers live in Port Moresby; one works as [an Occupation 1] and the other as [an Occupation 2]. Her sister is married and lives with her mother in [Village 1].
She has [children] currently aged [Ages] years old to her ex-partner, [Mr C]. Her oldest [child] is living with his father, who came and took [her/him] without her consent. Her [younger children] live with her mother in [Village 1].
She met [Mr C] in [Year], while she was at high school in Port Moresby. They started living together, with his family in Port Moresby, in [Year] but never formally married. They separated in 2020. Asked when she last had contact with [Mr C], she stated in 2020. She thinks he is currently living in his village of [Village 2] on New Britain Island but is not sure. He does not know that she is living in Australia. Asked about her current relationship status, she stated that she is not currently in a relationship.
Asked whether she lived in any other parts of PNG, other than Port Moresby, she stated that she lived in Lae for less than one month. She moved to Lae to try to escape from [Mr C]. She left her children with her mother and stayed with friends in Lae but [Mr C] learnt of her whereabouts. She also lived for periods of time in [Village 1], where her family has a house. Before coming to Australia, she was living in the house of her former employer in Port Moresby.
Regarding her educational and work history, she completed grade 10 of secondary school. She had a few short-term [Job task] jobs while living with her ex-partner. Before coming to Australia, she was working in [a Job task] role for a business involved in the [Work sector].
Regarding her travel to Australia, she stated that she first came in September 2023 for a few weeks and returned to Australia for a second time in October 2023. Asked about the purpose of her first trip, she stated that she travelled with her boss on a business trip in connection with the [Work sector]. Asked why she returned to Australia in October 2023, she stated that she saw an opportunity to seek protection because she was still living in fear from [Mr C] and did not feel safe in Port Moresby. When asked why she did not apply for protection in September 2023 if she was fearful, she stated that she was ‘not ready’ at that time. When she returned to PNG in September 2023, her mother was worried and advised her to remain in Australia. I discussed with the applicant that I may have concerns as to why she did not apply for protection during her first visit in September 2023 if she feared harm at that time from [Mr C]. She responded that she was travelling with her boss for business and could not apply for protection at that time.
Asked about her contact with the authorities regarding the abuse from [Mr C], she stated that she went to the police; they made a report but did nothing further. Asked when this occurred, she stated in around 2020, after she returned from Lae. She also filed a police report in 2017 but nothing happened, and [Mr C] continued to abuse her. After filing the police report in 2020, she left [Mr C] and lived in a ‘safe house’ in a suburb of Port Moresby for one month, together with her [children]. Asked how she came to live in the safe house, she stated that a woman at the police station referred her to social services who took her to the safe house. During her stay at the safe house, she received assistance to file court documents for the grant of an IPO. After being discharged from the safe house, she and her children went to stay in [Village 1].
Asked whether she received assistance with the preparation and filing of court documents after leaving the safe house, including from the police, she stated no. I discussed with the applicant that some of the court documents refer to the ‘[Suburb 2] Police FSV Unit’ and indicate that they filed the documents on her behalf, after she left the safe house. She responded that she went there but nothing was done. When I pointed out that it appears they did do something by filing the court documents, she agreed but stated they could not do anything further.
Asked about any other interactions with the authorities, she stated that she filed another police report after [Mr C] took her oldest [child] in early 2021. [Mr C] turned up unexpectedly to her brother’s house in Port Moresby, after learning that she and the children were staying there and grabbed her [child]. She has not seen him since that time.
Asked how many IPOs she applied for, she stated one. I discussed with the applicant that the court documents appear to be dated 2020 and 2021 and indicate that she applied for multiple IPOs. She stated that after the IPO was issued, [Mr C] tried to attack her in front of the courthouse, so she filed another document with the court. When asked about the outcome of her request to the court for a permanent protection order against [Mr C], she stated that she never received an outcome. She was told to wait until the defendant attended court, but he never did. She stated that she didn’t fully understand what was happening with the court process.
Asked why the documentary evidence submitted to the Tribunal records her surname as [previous surname] rather than [current surname], she stated that she changed her name prior to applying for her passport in 2022. She wanted to start a new life, in a different name to that which [Mr C] knew her by. I discussed with the applicant that the protection visa application asks whether she has ever been known by another name, to which she stated no. She responded that she used to be [the applicant – previous surname] but is now [the applicant – current surname]. Whe` n asked whether she has any documentary evidence to support her change of name, she responded that she doesn’t have the documents with her in Australia.
I asked the applicant about the photos submitted to the Tribunal, specifically when they were taken. She responded that they were taken in 2020, at the time she filed a police report. She confirmed this was the police report provided to the Tribunal. I discussed with the applicant that the police report was made in December 2018, which appears inconsistent with her evidence of when the photos were taken. She responded that she made a police report in 2018 but nothing happened so [Mr C] continued abusing her.
Asked whether she received any treatment for those injuries, she stated that she received antibiotics from the clinic at [Hospital] and confirmed this relates to the medical report provided to the Tribunal. I discussed with the applicant that there is a 2-year difference between the date of the medical report (November 2020) and the date of the police report (December 2018). She responded that they relate to different incidents – she did not attend any clinic following the incident in 2018 but did attend the clinic after the incident in 2020. She confirmed that the incident which caused the injuries depicted in the photos occurred in 2018.
Asked whether she had any contact with [Mr C] while in the safe house, she stated no. I discussed with the applicant that this appears inconsistent with her court statement dated December 2020 which states that while in the safe house in November 2020, [Mr C] came with the police and threatened her. She responded that she did not have direct contact with him, but he made a false report to the police.
I discussed with the applicant that she had stated that she had no contact with [Mr C] since 2020, however the court documents indicate that in February 2021 she had contact with him when he attended court. She stated that he grabbed her phone from her outside the courthouse. She did not speak with him or initiate any contact with him. She has not seen him since that time.
Regarding inconsistencies between the documentary evidence and her oral evidence to the Tribunal, the applicant submitted that she has difficulty recalling dates and experiences side effects from the abuse she suffered in PNG. She suffers from headaches and doesn’t sleep well. She has not sought any medical treatment for these issues since arriving in Australia as she can’t afford it.
I discussed with the applicant that there are several inconsistencies between her protection visa application and her evidence to the Tribunal, including details of her family in PNG, whether she sought help from the authorities in PNG and her current relationship status in Australia. She responded that someone else prepared the application and she was unaware of what they included until after the application was lodged. They didn’t explain the process to her, and she thought they were doing the right thing.
When asked why she did not respond to the s 56 letter, she stated that the person helping her did not contact her to let her know about the letter. At that time, she had the supporting documents that she has provided to the Tribunal but wasn’t made aware of the s 56 letter. She advised that the email address provided in her protection visa application is not her email address; it belongs to ‘[Ms E]’ who was the contact between her and [Mr D].
I discussed with the applicant that I will need to consider whether she has a reasonable explanation for not providing the documentary evidence submitted to the Tribunal to the Department and may need to make a negative inference regarding the credibility of that evidence. She reiterated that she was not made aware of the s 56 letter. She first became aware of it when she read the delegate’s refusal decision.
Post-hearing evidence

On 11 March 2024, the Tribunal sent a letter to the applicant under s 424A of the Act, raising information that may form the reason, or part of the reason, for affirming the decision under review. The applicant was advised that in her application for a Visitor visa lodged with the Department on 12 April 2023 she stated that she had never been known by any names other than [the applicant – current surname]. Regarding available identity documents, she referred to having a birth certificate in the name of [the applicant – current surname].
The Tribunal explained to the applicant that this information is relevant to her review because it appears inconsistent with her oral evidence to the Tribunal that she changed her surname from [previous surname] to [current surname] in early 2022 when she applied for a passport. The applicant was informed that this information may be relied on in assessing the weight given to the documentation provided in the name [the applicant – previous surname] in support of her claims to have experienced domestic violence from her ex-partner.
The applicant was invited to comment on or respond to the information by 25 March 2024. On 25 March 2024, the Tribunal received a request from the applicant for an extension of time to respond due to delays in receiving documents from PNG. The Tribunal allowed an extension until 5 April 2024. On 5 April 2024, the applicant submitted a written response, together with copies of 2 documents, as discussed below.
According to her written response, she stated in her Visitor visa application that she had never been known by another name because she was in hiding and living a fearful life under an IPO issued in April 2021. She refused to use her former name as she was scared that her ex-partner and ‘his sources’ would be able to track her down. Her ex-partner is the son of a businessman and has contacts everywhere. He comes from [Village 3], which is an area known for notorious criminals with links to the criminal world. She was trying to hide her previous identity for her safety.
Regarding her birth certificate, she stated that her full name was originally ‘[the applicant – given name, previous surname, current surname]’ which included her father’s first name ([previous surname]) and surname ([current surname]). Over time, she became known as ‘[Given name, nickname]’, with ‘[nickname]’ being short for ‘[previous surname]’. In 2016 it became compulsory to apply for a National Identification Document (NID) and all previous birth registration documents became null and void. After lodging her NID application in 2022, she was issued a NID and birth certificate under the name [the applicant – current surname]. Her passport application in 2022 was based on her ‘NID birth certificate’ in the name [the applicant – current surname].
The applicant submitted a PNG Statutory Declaration (the exact date is unclear but appears to be made in 2022) and a Deed of Change of Name dated 27 May 2022 in relation to her 2022 passport application. These documents state she was previously known as ‘[Given name, nickname]’ and changed her name to ‘[the applicant – current surname]’ due to NID lodgement which required her to use her father’s surname of [current surname] instead of [Nickname] as recorded in her previous passport.
Assessment
Factual findings
In determining whether the 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 Tribunal’s Guidelines on the Assessment of Credibility[1] 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.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[1] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
As outlined above, I have credibility concerns regarding certain aspects of the applicant’s claims. These concerns arise from the late disclosure of the supporting documentary evidence; her failure to apply for protection during her first visit to Australia in September 2023; the discrepancy in her surname; and various inconsistencies between her protection visa application and her evidence to the Tribunal and between the documentary evidence and her oral evidence to the Tribunal.
I have considered the applicant’s explanation for not providing the supporting documentary evidence to the Department. I accept that she did not prepare the protection visa application herself and paid a third party to complete the application. She identified the third party as [Mr D]. According to media reports, [Mr D] was the subject of legal proceedings in the Federal Court in 2017 in connection with the exploitation of foreign workers under the seasonal worker program.[4] I accept that the applicant was unaware of the information provided in her protection visa application at the time of lodgement and that she was not informed of the s 56 letter prior to the delegate’s refusal decision. I am satisfied that she has provided a reasonable explanation for not providing the documentary evidence to the Department and have therefore not drawn an unfavourable inference about the credibility of that evidence.
[4] The Guardian, Doherty B, Hungry, poor, exploited: alarm over Australia’s import of farm workers, 3 August 2017
Considering the above, I have not drawn any adverse inferences regarding the credibility of the applicant’s claims based on inconsistencies between the information in the protection visa application and her evidence to the Tribunal. In the circumstances, I have not placed any weight on the evidence in the protection visa application.
Regarding the discrepancy in her surname, I have considered the applicant’s response to the s 424A invitation and accept that the applicant changed her surname from [previous surname] to [current surname] when applying for a NID in 2022. DFAT reports that PNG officially launched a national identification biometric system in 2015 which is intended to capture fingerprints as the unique identifier of people.[5] I have therefore not drawn any adverse credibility inference based on the discrepancy in her surname as recorded in the documentary evidence.
[5] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 25
However, I have some concerns regarding the reason for the applicant’s change of surname and her explanation of why she did not refer to this in her Visitor visa application, which she claims was due to a fear of her ex-partner locating her. She first claimed in the s 424A response that her ex-partner comes from a powerful family with connections to criminals. The Statutory Declaration submitted with the s 424A response indicates that the name change was due to the requirement under the NID application process to use her father’s surname ([current surname]) rather than his first name ([previous surname]). I do not find it credible that the change of surname was to avoid being located by her ex-partner considering that the applicant retained her first name and her ex-partner would have been aware of her father’s surname ([current surname]) and that she had not had any contact with her ex-partner since February 2021 despite her remaining in Port Moresby. I find that the applicant has embellished this aspect of her claims.
Regarding the applicant not applying for protection during her first visit to Australia, I have considered her response to the Tribunal that she was ‘not ready’ at that time and was unable to apply because she was with her employer on a business trip. I find this to be inconsistent with the applicant’s claim in response to the s 424A invitation that she was in hiding from her ex-partner and fearing for her life as of 2022. However, given my findings below, I have not placed significant weight on her failure to apply for protection in September 2023 in assessing the overall credibility of her claims to have experienced domestic violence from her ex-partner.
Regarding the inconsistencies between the documentary evidence and her oral evidence to the Tribunal, I have taken account of the applicant’s response that she has difficulty recalling dates and suffers various symptoms because of the abuse she experienced in PNG. I acknowledge that the applicant’s experience of violence from her ex-partner was traumatic, and she would reasonably find it difficult to recall and discuss these events. I also accept that she did not fully understand the court processes that she was involved in. I accept that she experiences some confusion with recalling the timeline of incidents of violence, the contact she had with the police and support services and the related court processes. In the circumstances, I have not placed weight on these inconsistencies in assessing the overall credibility of her claims to have experienced domestic violence from her ex-partner.
Aside from the surname discrepancy, the information in the documentary evidence regarding her personal details and family composition is generally consistent with her evidence to the Tribunal and the information in her Visitor visa application. Aside from the inconsistencies with the applicant’s oral evidence discussed above, there is nothing on the face of the documentary evidence to indicate that it is not genuine and does not relate to the applicant. Further, the applicant’s claims regarding her experiences of violence from her ex-partner and her interactions with the authorities are generally supported by country information, as discussed below.
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.[6] 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.[7] According to a 2023 Parliamentary Committee Inquiry on Gender Equality, gender-based violence is increasingly exponentially.[8] Most cases of gender-based violence are not reported to the authorities.[9]
[6] 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;
[7] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022
[8] 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
[9] US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023
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.[10]
[10] 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.[11]
[11] US Department of State, Country Reports on Human Rights Practices for 2022 - Papua New Guinea, 20 March 2023
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 RPNGC lacks the capacity to respond to crime generally, its response to gender-based violence is especially lacking. 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.[12] Police officials admitted that police could not keep women and children safe and lacked resources for thorough investigations.[13]
[12] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
[13] 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 Family and Sexual Violence Units (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 FSV Unit officers across the country and they are typically subject to the same resource constraints as the rest of the RPNGC.[14]
[14] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
In September 2013, PNG’s parliament unanimously passed the Family Protection Act which provides for IPOs and longer-term protection orders, which forbid contact of the person seeking the order by a spouse, ex-spouse or family member. While IPOs reportedly make a positive difference to perceived safety of FSV survivors, sources suggest they are not presently offering women in PNG much protection. Only about 1,000 such orders are issued per year, compared to an estimated 1.5 million acts of gender-based violence in PNG each year. Furthermore, sources report the RPNGC typically lacks the inclination and resources to enforce such orders.[15]
[15] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
Sources report a significant lack of services for people requiring assistance after suffering family violence. There are now 22 Family Support Centres (FSCs) across the country (one in each province), typically attached to a general hospital to provide health services for gender-based violence survivors. FSC services are insufficient, with each centre usually having one to 2 staff, primarily nurses or social workers, rather than doctors, and receiving between 30-100 gender-based violence referrals per month.[16]
[16] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 17
While women’s refuges exist in PNG, they are insufficient for the level of gender-based violence that exists. Sources report that Port Moresby, a city of 800,000 people, has only six safe houses for women suffering gender-based violence, open to the public, and mostly run by faith-based organisations. Some of these safe houses have as few as two rooms, while others can accommodate up to 10 survivors in a shared room.[17]
[17] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 17
Considering the above, I accept the following as credible:
i.The applicant was in a de facto relationship with [Mr C] between 1999 and November 2020 and they have [children].
ii.During this period, the applicant was subjected to violence and mistreatment from [Mr C], including the following serious incidents of violence:
a.an incident in December 2018 from which she suffered injuries caused by a heated [object] being applied to [her body parts] as depicted in the photos submitted; and
b.an incident in November 2020 from which she suffered injuries as described in the medical report which caused her to leave [Mr C] and seek assistance from the authorities.
iii.The applicant moved to Lae in around 2020 to escape [Mr C] but he located her after about one month.
iv.The applicant resided in a safe house or women’s refuge in Port Moresby for approximately one month in November to December 2020, during which time she received assistance to apply for an IPO [in] December 2020.
v.The applicant applied for a permanent protection order in March 2021, following several incidents in which [Mr C] breached the IPO, including an incident on [Day 2] March 2021 where he took the applicant’s eldest [child] without her consent. The applicant did not receive any outcome regarding the application for a permanent protection order.
vi.The applicant has had no contact with her ex-partner since the incident of [Day 2] March 2021.
Refugee assessment
Based on the applicant’s circumstances, I find that if she were to return to PNG, she is likely to return to either Port Moresby, being her previous primary place of residence, or to [Village 1], where her mother, sister and [younger] children reside. Based on the above findings, I consider there is a real chance, being a possibility that is not remote or far-fetched,[18] that the applicant would be subjected to gender-based violence in the reasonably foreseeable future from her ex-partner if she were to return to either Port Moresby or [Village 1].
[18] Chan Yee Kin v MIEA [1989] HCA 62
I acknowledge that the applicant has received no contact from her ex-partner since March 2021. However, against this I have considered the lengthy history of gender-based violence from her ex-partner, the serious and repeated nature of the harm inflicted on the applicant, the fact that they have [children] – [number]of whom reside with the applicant’s mother and the eldest with her ex-partner; the legal action taken by the applicant against her ex-partner and the failure of the IPO to prevent him having contact with her. I also consider it plausible that her ex-partner left Port Moresby in 2021 due to the IPO-related legal proceedings at that time, which would no longer present a barrier to him contacting the applicant.
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.[19] However, the presence of the applicant’s 2 brothers in Port Moresby did not prevent the applicant being subjected to repeated violence from her ex-partner. I am not satisfied that her brothers or other family members in Port Moresby or [Village 1] would be able to mitigate against the risk of violence from her ex-partner if the applicant were to return.
[19] 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 find that if the applicant were to return to Port Moresby or [Village 1], her ex-partner would be able to locate her through family and social connections and that there is a real chance that he would harm her in the reasonably foreseeable future.
I have therefore considered whether the real chance of harm relates to 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.[20] This is consistent with the applicant’s experience of being located by her ex-partner in Lae. I am satisfied that there is a real chance of harm from her ex-partner throughout PNG.
[20] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 24
Given the prevalence of gender-based violence throughout PNG, as discussed in the above country information, and the applicant’s lack of male family members or wantok in other areas of PNG, I also consider that there is a real chance that the applicant would experience gender-based violence from other males if she were to move to another part of PNG. I find that the real chance of harm relates to all areas of PNG.
A refugee protection reason has not been expressly submitted. Based on the facts I find that the applicant fears persecution for reasons of her membership of a particular social group which may be described as ‘women in PNG’ or ‘single women in PNG’. I find this group to satisfy the definition in s 5L as the characteristics of gender and/or marital status are shared by each member of the group, including the applicant; are not a fear of persecution; and are innate or immutable or distinguish the group from society. 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.
As outlined in the above country information, women who are subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection. While the applicant was able to obtain some assistance from the authorities, including to apply to the court for an IPO, this did not prevent her ex-partner from having contact with her and she may be unable to obtain such assistance if she were to return. Considering the above, I find that effective protection measures, as defined in s 5LA, would not be available to the applicant.
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 find 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.
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.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Mia Bailey
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.
…

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

[2024] AATA 2949

17 April 2024

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