2401175 (Refugee)

2401175 (Refugee) [2024] AATA 1960 (16 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2401175
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Rosa Gagliardi
DATE:16 May 2024
PLACE OF DECISION:  Australian Capital Territory
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 16 May 2024 at 2:47pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – membership of particular social groups – single mother with no male protection – fear of harm from ex-boyfriend – attacked and threatened after new relationship and pregnancy – Australian citizen child – separated from child’s father and own father died – ex-boyfriend’s close friends within police force – realistic, detailed and credible claims – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 on 25 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 (a matter the Tribunal accepts) applied for the visa on 18 September 2023.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Papua New Guinea, there is a real risk she will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 13 May 2024 to give evidence and present arguments.
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
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and whether there is a real chance that if the applicant was returned to Papua New Guinea now or in the reasonably foreseeable future, she would be persecuted for one of those reasons and whether she would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims at the time of application
In her application form the applicant wrote (as written):
I broke away from an abusive relationship few years back with Papua New Guinean and I got into a new relationship with my ex partner (an Australian) whom we separated last November while we were here.
While we were back in Papua New Guinea, my previous boyfriend would show up, threatening me infront of people and even went to the extreme of bashing me up even when I was already in a relationship and was pregnant. He would threaten to kill me, my son and my partner.
I have received threatening messages from him that he will kill me and that if I return back home, he will chop me up to pieces. I also tried reporting the matter to the local police but to no avail as everyone knows, this is seen as normal in Papua New Guinean womans everyday life issues and most lost their lives which people see as normal.
I am now in this desperate situation because I just broke up with my sons father and life hasn’t been easy and I will need to return home which I fear the most with my life. I cannot relocate within PNG because he will still find me and I don’t want to put my mother and younger siblings into risk as well as we just lost our father earlier this year.
My son is an Australian citizen by descend and I cant bear to take him back with me to go through all these. I really want to remain here and be able to seek protection and also be a part of my sons life in his upbringing.
Please consider my application and I also have supporting documents such as screen shots of messages to support my claim.
The applicant confirmed that she had experienced harm in her country. Asked to provide details she wrote:
I been bashed up in couple of occasions by the abuser which left me with bruises and scars which I still have. The person responsible is my ex-boyfriend. I see him as a narcist and a total controlling person. He decided to do this because I escaped from his abuses around 2018 and I went into a new relationship with my recently ex partner (my sons dad). He later found out and started attacking physically and verbally for almost a year. It all got even worse when he found out I was pregnant. I feared laying complain with the police because I once tried and he threatened to kill my son’s father. I put up with all these in silence to save my son’s father who was working there as an expatriate.
The applicant stated that she did try to obtain assistance in her country and that:
I did try to lodge complains with the police but every time I go there, he will show up and threaten me or his friends there (Police Officers) will call him to notify him that I was there. I also refrain from going further because he threatened to kill my partner if I do anything about it. To save my partner, I kept all those in silence and suffered while waiting for my sons birth.
The applicant wrote that she did not try to move to another part of Papua New Guinea because:
…I was engaged to my son’s father and we are living together. I could not leave him and seek safety because I will put his life at risk or anyone of my family members at risk. Also, at that time because I was pregnant and my travel capability was limited so I had to go through this while pregnant until I gave birth to my son and moved here.
The applicant was asked to set out what she thought would happen to her on return to Papua New Guinea:
If I go back, i am pretty sure he will kill me or do permanent damage to my body. I saw him being violent which he never cared. If he can bash up a pregnant women non stop, he can do anything he wants. That scared me the most and I am a young mother and I have a long life ahead of me my son needs me.
I cannot seek safety in other provinces because he will still find me or I will put my family’s life in danger. Moreover, the safe houses in Papua New Guinea for women facing domestic violence is always full and they will allow you to be there for only a week.
She expressed the conviction that she would be harmed or mistreated if she returned to Papua New Guinea:
I will likely be tortured as every Papua New Guinean women go through or he will leave me disabled with permanent injury. The person who will do this is my ex boy friend. He will do that because he never want me to break away from the abusive relationship.
The applicant wrote that she did not think the authorities of her country would protect her because:
To be perfectly honest here, Papua New Guinea is a country you can never rely on anyone for your safety. We’ve had cases of women going to police or women rights advocates but they were failed by them and then went back home only to be murdered. The normal response you will get from the police officer is to get back home and sort out your issues because they think its family matter and they don’t want to waste their time. It happens every time. Women got rejected everyday and most lost their lives which were on media everyday. Upon seeing this, I am in fear of my safety. It will be late for me and I will have no choice to escape so I took the possible approach and chance I have to apply for protection while Im still safe here in Australia.
The applicant expressed the view she could not relocate within her country:
The only choice I had is to escape overseas. If I go back and relocate somewhere, he will still find me. Papua New Guineans are bonded by extended family ties and will still know where I am. Also, I cant leave my young son here. He is [age] and he needs me in his upbringing. Going back home and traveling to and from on a temporary visa is too costly for me as I am struggling and also my safety will always be a concern for me.
I just need protection here and also be involved in my son’s life.
The applicant has provided evidence of having a son with her former partner in Papua New Guinea in 2022 who is an Australian citizen. The applicant has also submitted a birth certificate for her son with x,y,z listed as the father. The applicant’s claimed former boyfriend is named a,b,c and is the putative perpetrator of family violence towards the applicant. The applicant’s now also former partner is the father of her son is named x,y,z.
In support of her application the applicant provided:
·Photographs of the applicant with a male, stated to be a,b,c.
·Photographs of a male claimed to be a,b,c in a white top smeared with blood.
·Photograph of a large knife perched on knees of a male.
·Photograph of a male claimed to be a,b,c holding a knife to his throat.
·Screenshots between the applicant and who it is claimed is a,b,c full of expletives and abusive language towards the applicant.
·Photos of applicant with swollen/bruised eyes.
·After the hearing with the Tribunal the applicant submitted a letter from the applicant’s younger school-aged sister, stating:
…I was living with [the applicant] and her ex-partner x,y,z in [Town] when I was [Age] years old in grade [Number] in 2021.
I lived with them for two years and witnessed everything that a,b,c used to do to my sister because my sister is always home to drop me and pick me up at school.
I remember one time that a,b,c made his way into the gate to the house and threatened my sister to kill her. It was on a school holiday. Other time was on a weekend on Saturday he went over through the gate and threatened her as x,y,z was away. Some attacks happen when I was at school.
A lot of time, my sister will pick me up from school with teary eyes, swollen lip and one time she picked me up with a swollen face and we rushed home because she was scared. He keep attacking her while she was pregnant so she had to stay home for her safety so x,y,z pick me up and drop me at school until they left and I transferred here…
In its decision the Department wrote, “I have considered the photographic evidence provided by the applicant in support of the application. Based on their verbal testimony, I am willing to accept that the photographs provided support the applicant’s account given during the interview”. Further, the Departmental decision states:
I have had regard to the applicant’s claims of domestic violence at the hands of her former partner, a,b,c. I acknowledge that the only documentary evidence provided to support their claim of being in a relationship is photographs of the applicant with a male said to be a,b,c. However, I find that the applicant spoke spontaneously and was forthcoming about their relationship and their testimony was based on their own lived experience. I therefore accept that the applicant was in a relationship with a.b.c. Based on their oral testimony, I accept that the applicant previously experienced harm from a,b,c as claimed.
The decision-maker at first instance considered, however, that it was not plausible that a,b,c had demonstrated any ongoing interest in the applicant since she had been living in Australia. The Department did though acknowledge that violence against women in Papua New Guinea was prevalent and that women face high levels of societal violence. The decision-maker also acknowledged that physical violence was experienced by divorced, separated, or widowed women.[1] Reference was also made in the Departmental decision to police responses to gender-based violence to be inadequate, and that domestic and international sources reported that police and prosecutors rarely pursued criminal charges against perpetrators of family violence.[2]
[1] ‘Papua New Guinea Demographic and Health Survey 2016-2018’, National Statistical Office, Papua New Guinea, Papua New Guinea Demographic and Health Survey 2016-18 [FR364] (dhsprogram.com).
[2] Australian Government, Department of Foreign Affairs and Trade, Country Information Report. Papua New Guinea, 6 September 2022. DFAT Country Information Report on Papua New Guinea.
The Department also wrote in its decision that the Protection Visa guidelines state that ‘Gender is not, in and of itself, a ground for persecution under paragraph 5J(1)(a) and that the applicant must demonstrate that their fear is for reasons of their race, religion, nationality, political opinion, or membership of a particular social group.
After the Department refused the visa on 25 January 2024, the applicant wrote on
25 January 2024, requesting the decision be reviewed because she had not simply applied for protection to achieve a migration outcome and remain in Australia. She reiterated that while she came to Australia on a Tourist visa with her then partner, x,y,z (an Australian citizen), they returned to [Town] where x,y,z was working in 2020, but that a,b,c continued to come to the house she shared with x,y,z threatening her and physically abusing her. The applicant also stated that x,y,z was considering moving into [a type of residence] in Australia and she would be the child’s (who is now [age]) primary carer.
Evidence at hearing
The Tribunal similarly found the applicant a credible witness in terms of what had happened to her in the past. She confirmed that she escaped her relationship with a,b,c in 2018 although his acts of violence continued towards her well after she had established her relationship with x,y,z and during her pregnancy.
The applicant stated that she lived with the abuse because she did not want her former partner’s, x,y,z’s migration status to be jeopardised in Papua New Guinea and she did not want to approach the police in the event a,b,c attempted to harm x,y,z and their child.
The Tribunal also asked the applicant whether a.b.c had ever sexually violated her including having raped her, either within or outside the relationship. The applicant stated she had not experienced forced sex because any time he would impose himself she would flee him and did not allow him to perpetrate sexual violence against her. The Tribunal finds that the applicant’s unwillingness to enhance her claims by stating she had been raped in the relationship or outside it, even though it would have elevated her claims, is an indicator that the applicant is a credible witness and was only prepared to outline events that had actually happened to her.
The Tribunal asked the applicant to explain the significance of the photos she had submitted. The applicant stated that a,b,c had taken such photographs of himself to send her to violently threaten her. The bloodied shirt he was wearing was in the aftermath of a confrontation with someone else and it indicated to her what a,b,c was capable of. The photographs of a,b,c with a knife had been taken to let the applicant know he was coming after her and would kill her.
The applicant stated that she could not return to Papua New Guinea as now her father was deceased (evidence by way of death certificate submitted) and she would have no male protection, even though in Papua New Guinea nobody could guarantee you safety.
The Tribunal asked the applicant whether she had gone to the police in Papua New Guinea to seek protection but she responded that she had low confidence in the police, particularly as a,b,c had close friends within the police force would tell a,b,c about any complaint she made and they would certainly not be sympathetic to her plight.
The applicant also stated that she feared for the life of her Australian citizen child. A,b,c’s threats and physical abuse escalated during her pregnancy to x,y,z and after the birth. Being controlling of the applicant, a,b,c saw the pregnancy as a sign he had lost control of the applicant because she had built a new life for herself with someone else.

The Tribunal asked the applicant why she had not presented to a medical clinic with the bruises and injuries she claims she sustained during the physical abuse, and the applicant stated that she just put up with it.
The Tribunal has also had regard to the country information below which sets out the extent to which family violence permeates Papua New Guinean society:
Women’s and girl’s rights
PNG remains one of the most dangerous places to be a women or girl. Over 1.5 million people experience gender-based violence each year. In April, a special parliamentary committee tabled its final report on measures to prevent violence against women and girls, recommending that PNG’s parliament establish a permanent committee on gender-based violence.

In February 2022, parliament passed legislation to strengthen criminal penalties for “sorcery”-related violence, which continues. In July, following the death of a prominent businessman, nine women in Enga Province were accused of “sorcery” by members of the businessmen’s tribe and were splashed with petrol, burned and assaulted vaginally with hot iron rods. Police rescued five of the women, but assailants killed four. Perpetrators of “sorcery” related violence are rarely prosecuted. At time of writing, it appeared that no arrests had been made in the case, although the police commander said key suspects would be arrested soon.
…..
PNG has one of the highest maternal mortality rates in the world. More than 2,000 women and girls die in childbirth in PNG each year, their deaths are largely preventable…

[3] ‘Papua New Guinea Events of 2022’, Human Rights Watch, 11 July 2022,
Two women won parliamentary seats in the national election, returning women to the PNG parliament for the first time in five years.[3]
A policy development blog, dated 18 January 2024, confirms the particularly high rates of intimate partner violence in Port Papua New Guinea:
Intimate partner violence (IPV) affects 80% of women in Papua New Guinea, a rate that may be the highest in the world. This blog draws on a sample of 152 cases (out of 2,000 cases in total) maintained by the Royal PNG Constabulary Family and Sexual Violence Unit (FSVU) in Port Moresby for the year 2020, to understand the driving incidents of IPV in that location. It also examines outcomes of the cases in terms of justice for victims.
….
[4] ‘Intimate partner violence in Port Moresby: drivers and outcomes’ DEVPOLICYBLOG, by Minettta Daniella Kakarere, 18 January 2024,
Separate interviews with officers in the FSVU suggest that several challenges affect the ability of the police to help IPV victims get justice. First, the FSVU space is small, and there is no privacy between the perpetrator and the victim. This can prevent complainants from telling the full story of the abuse they have faced for fear of being abused again when they return home. Also important is the court process. According to four police officers, many complainants have given up pursuing their cases because the court often adjourns cases, even if all necessary evidence and paperwork are presented, and it can take two to three months for the final decision to be made. Additionally, complainants who were unemployed often encountered financial difficulties travelling to and from court while complainants who had family obligations were unable to continuously follow up on the court decisions. Similarly, self-employed victims or complainants saw that coming and going to the court, just to hear that their cases were adjourned, was a waste of time. These reasons contributed to complainants giving up the pursuit of their cases and the large number of unsuccessful cases in 2020.[4]
Other country information supports the above concerns:
There was alarm in Papua New Guinea Parliament last week when MPs were told that gender based and sorcery violence was widespread and much higher than reported.
They heard this from Port Moresby Governor Powes Parkop, who presented a damning report detailing the findings of any inquiry into gender based violence and sorcery related violence.
Governor Parkop said stakeholders across the country wanted more action.
“It’s increasing,” Parkop said.
“We heard testimonies of those in government, private sector and civil society to better understand why our country continues to struggle with ever increasing rates of violence against women and girls”, he added.
“Officials from the National Development of Health shared data with us which showed an alarming rate in the number of people presenting themselves to health services for case relating to violence,
“They advise that this is only the ‘tip of the iceberg’; a catastrophic human rights violation alarming for a country not at war”.
….
Law enforcement reported that from January 2021 to April 2023, there were 30,028 cases of sexual violence reported across the country out of which 1304 arrests were made – amounting to 4 percent.
“This is a staggering low conviction rate”, Parkop said.
“This is what women and girls and even some men too have to face in our country,
“Going to public spaces is a big challenge for women and girls”.
….
Minister of Labour and one of only two women in PNG’s Parliament, Kessy Sawang, said Papua New Guinea had signed and ratified international conventions against GBV, but violence against women and children continued to plague the country.
…
[5] ‘Violence against women and girls ‘increasing’ in Papua New Guinea, MP says, Finau Fonua, RNZ, 14 October 2023,
This is not a women’s issue this is a basic human rights issue”, Sawang said…[5]
The Department of Foreign Affairs and Trade (DFAT), Australian Government Country Report on Papua New Guinea, states that violence against women and girls in PNG is very common, “among the most common in the world”.[6] Further, DFAT assesses that women across PNG face a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict their ability to participate in the community and workforce.[7]
[6] Australian Government, Department of Foreign Affairs and Trade, Country Information Report, Papua New Guinea, 6 September 2022,
[7] Ibid.
In terms of the effectiveness of the police in protecting women against gender-based violence, DFAT reports that alleged abuses and the use of unnecessary violence by police have been consistently highlighted by international human rights bodies.[8] DFAT also reports on the low rates of convictions for gender-based crimes, and even seemingly clear-cut cases can end without a conviction (confirming above information).
[8] ibid.
For example, on 3 September 2021, in Mt Hagan, following the murder of a 31-year-old woman, three men were released from prison following a magistrate dismissing all charges. This was even though, according to media reports, police found the deceased woman’s body wrapped in a tarpaulin in the back of her husband’s vehicle at a police checkpoint, with the other two co-accused men present, and the husband confessed to the murder. The men were re-arrested following public outcry.[9]
[9] Ibid.
There are also appears to be an underutilization of protection orders as experts and organizations reported that survivors of violence were rarely able to secure interim protection orders (IPOs) and other forms of protection orders. Nongovernmental organisations that support victims said that police often seem reluctant to refer survivors for IPOS in cases where they would have been appropriate.[10]
[10] ‘Bashed up. Family Violence in Papua New Guinea’, 4 November 2015, Bashed Up: Family Violence in Papua New Guinea | HRW.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
As the Tribunal has highlighted it has found the applicant’s account of the events that occurred to her in Papua New Guinea realistic, detailed and credible. The Tribunal places particular weight on the applicant’s younger sister’s statement confirming the applicant had been subjected to ongoing violence by a,b,c. who had witnessed that family violence continued after the applicant and a,b,c had ended their relationship.
The Tribunal also places weight in the applicant’s favour regarding her credibility in relation to the text messages between the applicant and a,b,c which reflect the applicant telling a,b,c that she had endured extensive beatings in the relationship, controlling behaviour and need for anger management. In one of the texts the applicant states “I have all the hard evidence containing pictures of your physical assault in my own home. Threatening to kill with weapons in a premises which is NOT yours”. Reference is also made to the police. In a text message from a,b,c he states, “I’m warning you say one more word…And I’ll come over right and slice open your mouth”.
The Department acknowledged the texts but placed little weight on these because they appeared to be in a present tense and appeared to indicate that the applicant was still in a relationship with a,b,c even though she had moved out with x,y,z. At hearing the applicant explained that they expressed themselves and thought in pidgin English and that may be the reason the tense of the sentences may have appeared incongruous. The Tribunal accepts this explanation as pidgin language borrows from indigenous languages and English and tenses may seem contemporaneous when in fact reference is being made to past events.
The Tribunal also accepts that the applicant has been the subject of serious family violence.
Is the violence experienced by the applicant captured by s.5J(1)(a)?
The Tribunal is satisfied that the applicant’s circumstances do fall within s.5J(1)(a) because the applicant’s characteristics in having experienced serious harm go beyond simply being female, although the Tribunal would argue that “women” could be considered a particular social group given the prevalence of violence towards women in Papua New Guinea. The harm they experience is targeted and state-sanctioned because on women’s innate characteristics. Regardless of one’s viewpoint of whether women constitute a particular social group, the applicant has characteristics that elevate her above a hypothetical woman in Papua New Guinea and the Tribunal finds that the applicant is a member of the following particular social groups:
·Single mother subject of family violence with one child; and
·Single mother subject of family violence who has no male protection in Papua New Guinea; and
·Single mother subject of family violence whose former partner and perpetrator of violence has connections within the police force.
The Tribunal finds that membership of these particular social groups place the applicant at a significant risk of harm. A study found that divorced, separated, or widowed women are more likely to have experienced physical violence (70%) than currently married women.[11] Further, women with at least one child are more likely that those with no living children to have experienced physical violence.[12]
[11] ‘Papua New Guinea Demographic and Health Survey 2016-2018’, National Statistical Office, Papua New Guinea, Papua New Guinea Demographic and Health Survey 2016-18 [FR364] (dhsprogram.com).
[12]
The Tribunal has accepted that the applicant’s father is deceased and that she would be returning to Papua New Guinea on her own with a child. The Tribunal is satisfied that the applicant would be returning to Papua New Guinea with her child and would be required to sustain herself and care for the child on her own. This of itself does not, however, amount to serious harm as the applicant has shown herself to be resourceful in finding work in Australia and managing her circumstances regardless.
Cumulatively, however, the Tribunal finds that there is a real chance the applicant will suffer significant harm from her former partner, especially as the applicant’s child belongs to x,y,z. The Department considered that the events of family violence which occurred in 2018 were now too remote and that the applicant would not continue to be of risk to her former partner a,b,c. While the family violence started in 2018 when the applicant was in a relationship with a,b,c, from the evidence it is clear that the threats to kill and entry into her property to threaten her and her child, continued after the applicant had escaped the relationship. A,b,c’s accessibility to the police and the fact the applicant has shown violent, controlling, jealous and threating behaviour in the past, means there is a real chance he would continue to conduct himself in this way were the applicant to return to Papua New Guinea now or in the reasonably foreseeable future with the child of another man.
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.
Rosa Gagliardi
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.
…

1^{1 ibid.}

[2024] AATA 1960

16 May 2024

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