2402020 (Refugee)

[2024] AATA 3496

2402020 (Refugee) [2024] AATA 3496 (9 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Jayapal Reddy Vadlakonda (MARN: 0957482)

CASE NUMBERS:  2402020 and 2402022

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Wayne Pennell

DATE:9 August 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

Statement made on 09 August 2024 at 10:00am

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – particular social group – women – single mother – family violence – gender-based violence – fear of forced marriage – physical assault – fear of killing – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 420, 499
Migration Regulations 1994, Schedule 2

CASES

ABT16 v Minister for Home Affairs [2019] FCA 836
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Respondent “a”, Respondent “B” and Janet Wood, the Refugee Review Tribunal (1995) 57 FCR 309
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Re Gustavo Carlos Saavedra Morato v the Minister of Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401

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

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 16 January 2024.

2. The applicant, who claims to be a citizen of Papua New Guinea (‘PNG’), applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to PNG, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act,[3] and therefore she was not a person in respect of whom Australia had protection obligations.[4]

   [2]The applicant’s application was received by the Department on 19 September 2023.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application with the Tribunal to review the delegate’s decision (‘review application’).[5] On 3 April 2024, the Tribunal dispatched a letter to the applicant advising that it had considered all the material before it relating to the review application but it was unable to make a favourable decision on that information alone. She was invited (‘hearing invitation’) to give oral evidence and present arguments at a hearing scheduled on 31 May 2024.

   [5]The applicant’s review application was filed with the Tribunal on 7 February 2024.

4. Leading up to the hearing, the applicant (through her representative) filed with the Tribunal evidence to support her application, however no statement or statutory declaration had been provided by the application in respect to her evidence. Because of that, when the hearing commenced, the matter was not ready to proceed and the hearing was adjourned until 6 August 2024 to allow the applicant more time to further prepare her evidence.

5. The applicant was represented by a registered migration agent throughout the review process and she did not require an interpreter to assist her during the hearing. 

   CRITERIA FOR A PROTECTION VISA

6. The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

   [6]Migration Act 1958 (Cth), s 36.

   [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

7. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

   [8]Migration Act1958 (Cth), s 36(2)(a).

8. 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.[9] 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.[10]

   [9]Migration Act1958 (Cth), s 5H(1)(a).

   [10]Migration Act1958 (Cth), s 5H(1)(b).

9. The Act also provides that 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, and 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]

   [11]Migration Act 1958 (Cth), s 5J(1).

   [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

10. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

    [13]Migration Act 1958 (Cth), s 36(2)(a).

    [14]Migration Act 1958 (Cth), s 36(2)(aa).

    [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

11. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if: they will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

    [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

12. Notwithstanding that, the Act goes on to provide for certain circumstances where there is taken not to be a real risk that they will suffer significant harm in a country, which arise if the Minister is satisfied: that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

13. The applicant claims to be a citizen of PNG and provided a copy of her passport to the Department to authenticate this claim. The Tribunal accepts her identity and, based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[18]

    [18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

14. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

15. In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.

    [20]Migration Act 1958 (Cth), s 499.

    APPLICATION AND CLAIMS

16. The applicant’s application was lodged with the Department on 19 September 2023, and it was subsequently refused by the delegate. The claims expressed by the applicant in her application as to why she has a well-founded fear of persecution if she returned to PNG are as follows.

Provide reasons why this applicant left that country or those countries:

I have no family support in PNG. My big brothers are very violent and threatening, including other relatives like cousins and uncles. I have been physically, mentally and emotionally abused back in PNG numerous of times when I was a teenager. There is no where we can go to seek help, not even the police can come to help because its very corrupt and family matters like violence are taken lightly. I have no freedom back in PNG, when I am there I am basically locked up in the house and no freedom to do anything like walking to a store and theses are my brothers and uncles orders. If we do step out outside without them we are beat by any male family member. They also receive orders from my mum or brothers and beat us if said so. Unfortunately I lost my Dad in 2021, and life is been even tougher. My mother has no money to support me anymore and has told me to find means and ways to live. She said you either find your way or else you have to get married and I'm scared because I will be forced to if I do go back to PNG. Men in PNG are ruthless. They are very abusive and violent. I fear for my life to be sent away to men who typically would be much older than me and get abused sexually and other domestic violence. This is normally what happens and I have witnessed that being my cousins. They always beat up their wives over little issues and I fear for my life that I could   even die in the hands of such men.

My big brothers have taken everything from my mum and continuously threaten her if she doesn't give them what they want. This is why we don't get financial help anymore. My brothers have made it clear that nothing belongs to my mum, therefore my mum has been struggling with her [other] kids. I don't know PNG that well as I've lived here most of my life and I do get bashed for being 'too' westernised. I get threatened for sounding 'white' and that I should be more like PNG people. This has mentally affected me over the years I've grown up and I don't know where I belong.

My family is broken and we don't get along with each other. I fear for myself to return back I know I will get abused and sent off to marriage. I dont want to die in the hands of a man. I fear for my my mental health as well as I know will decline even further and with no way to escape or live, my life may be in danger in Papua New Guinea.

Did this applicant experience harm in that country or those countries?

Yes

Give details including:

• the type of harm this applicant experienced
• the person/people responsible for the harm

• why they harmed this applicant.

- physical abuse

- mental abuse
- emotional abuse
- no freedom
- arranged marriage
- labour

I have been mostly abused by family. There are uncles, cousin brothers and my own big brothers who bash us a lot for no reason. If there is a good reason according to them for bashing us, they go beyond like breaking bones or causing blood because thats when they believe we females will 'Iearn' and do better. I have been harmed for no reason as well as walking outside on the streets, leaving the house without permission, speaking up for myself, talking to any men, dating and wearing a particular clothing. I am also not allowed to talk to my Dads side of the family and I get beat for that.This has been mentally tough as my mum blackmails and gaslights us to believing they are bad

people and will never help us in our lives. This has caused me mental distraught since my father passed. There is no such thing as freedom in our home. I am too be watched every I go and must not go alone in PNG. If I do break any rule, again I will be bashed and locked inside the house. I get threatened everytime that if misbehave or do anything that brings shame into the family, I will be sent off to get married no matter who the guy is. Once the bride price is paid by the guy, I will literally be 'sold off' and can't return back. I fear the guys are way older and are very physically abusive. |They see women as their property and do whatever they please to them, even killing them for seeking help outside marriage. I fear I will be a statistic and go through sexual and domestic abuse everyday.

I also have to be a housemaid. I have to make sure food is cooked, clothes for everyone in the house is washed, dinner served etc. If I fail to do this once, I am emotionally manipulated by men in the family that no one will marry me, I am 'trash' and then get beaten for not doing what I am suppose too.

Did this applicant seek help within the country or those countries after the harm?

No

Give details of why this applicant did not try to seek help.

I have been threaten not to contact police and told they won't help as it is a family matter. No counsellor or other family can solve any violence/abuse matters. I am also young and couldn't escape my own family.

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

No

Give details for why this applicant did not try to move to another part of the country or those countries.

PNG has a high crime rate and poverty. It is not safe for me to move into another province as my life will be in risk of possible kidnap or rape. I fear going to somewhere I don't know with no strong police forces that can help. I also don't have family support anywhere else. There is also tribal enemies, potential family enemies that may harm me. I fear men in PNG as they are very abusive mentally , physically and emotionally. They don't see women as equal.

Explain what the applicant thinks will happen to them if they return to that country or those countries:

If I return back home I fear for my life. I fear I will get emotionally and verbally abused for returning back and not completing my studies. I fear I will be abandoned and left on the streets to figure out my own way as my mother cant take care of me. She has denied my rights to talk, be near or ask for help to my Dads side of the family and always tells me she'll disown me if she catches me doing that.

She has also expressed that I must get married if I go back to PNG and I'm scarred as it will be an arranged marriage. Daughters are typically sent to older men and they pay bride price. Once bride price is paid, women are like possessions to them. I fear getting married or even being sent off to and older men as I know they will abuse. They will force you to have sex with them and rape you. They break furniture, the cute skin and body parts when their wives dont listen, they beat till unconscious and they wont let you live the house. The lock all doors and take everything away so you dont have access to your family or the anyone. The men give no freedom and I know if I get sent to PNG they will expect me to get married and do arranged marriage for me. This happens everywhere in PNG, I've also  witnessed my cousin sisters go through this and they have become suicidal.

I fear for my safety around any men due to being hurt by my own brothers. None of my siblings will be able to help me as they are married and the younger ones are still in primary and high  school. It is not their problem to worry about according to traditions.

I fear I will get abused daily, sexual, physical and emotional. I won't be able to get help from anywhere including police and I will struggle. I believe if I go to PNG I wont live for long.

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

Yes

Give details including:

• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment

• why they would harm or mistreat this applicant.

Brother will abuse me in every way and keep me locked up. I will be restricted to move as well as controlled about how I dress and where I can go and who I can hang with.

My mum will make me get in an arrange marriage, harm me if I don't listen to her or give orders to my big brother to do it.

Does this applicant think the authorities of that country or those countries can and will protect this

applicant if they go back?

No

Give details about why this applicant thinks the authorities could not, or would not, protect them.

I have never witnessed anyone getting help from the police. I was too young when I was getting beat and couldn't and wasn't allowed to get help from anyone or else I would get more beating. Police don't intervene with family matters. I don't think anyone will be able to protect me at all.

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

No

Give details about why this applicant is unable to relocate.

I don't have any family support apart from my hometown [Town 1]. I am limited to talking to people, and don't know much of people so can't ask for help anywhere else besides [Town 1]. I have never been anywhere in PNG besides [Town 1] and scarred of experiencing kidnapping/rape or any harm as PNG is known for being violent and not safe for a women. I cant walk down the street without being in the risk of a pickpocket, knife point, gun point and kidnapping. Some places in PNG are also has worst crime rate then others and is all handled in a tribal way as police never intervene.

REVIEW HEARING 

Background

1. The applicant was born in PNG and is from a large family consisting of [number] children. Her mother is still alive and she lives in a village located within the Enga Province. This village is about a two hour drive from [Town 1]. Unfortunately, the applicant’s father passed away in July 2021.

1. The applicant first travelled to Australia in December 2009 when she was aged about [age] to commence her education in Australia, and understandably she has made frequent trips to and from PNG until she finished school in [specified year]. Since then, her only trip back to PNG was in July 2022.

2. In regards to her education, her parents brought the applicant and her siblings to Australia so that they could all be better educated. The applicant, along with all her siblings have been educated in Australia and they all graduated from high school. Her siblings have returned to PNG, with the exception of her [specified siblings].

3. She told the Tribunal that after finishing school at the end of [year], her parents would not allow her to return to PNG unless she had some type of university qualifications such as a degree. She relocated to Brisbane and enrolled in, and successfully completed, a foundational study subject with [a named institution]. She then enrolled in a [Course 1] but only completed half of the first semester because her studies were interrupted by the death of her father in July 2021. This impacted upon her emotionally and things were made even worse for her when she could not travel back to PNG for her father’s funeral because of the COVID pandemic, however in July 2022, she and her [sister] went back to PNG to pay respects to their father on the first anniversary of his death. She explained that after the death of her father, she did not return to her studies.

4. When she and [this] sister returned to PNG on that trip, they were away for about two weeks and then returned to Australia. After landing in Port Moresby, they stayed overnight with one of their sisters. On the following day, the applicant, [and her sisters] all flew to [Town 1] because her father is buried at a village which is located about 10 minutes’ drive from there. They all stayed for five days with [a sibling] who lives in [Town 1] before they flew back to Port Moresby where the applicant stayed until she returned to Australia [in] July 2022.

5. The applicant described that when she was in [Town 1] it was election time and there were incidents of significant tribal fighting in that area. When they visited her father’s grave, they could not initially return to [Town 1] because the tribal fighting had caused the roads to be closed by the police, and the violence also closed the airport. The applicant was not harmed during her trip back to Port Moresby and [Town 1], however because of the tribal fighting she was extremely fearful of being harmed, particularly because she was a single woman. 

   Domestic violence

6. In August 2022, police were called to attend the applicant’s address in relation to a domestic violence disturbance involving her former partner, who was at that time sitting in his car near her house. Two weeks previously, she had ended their relationship and since then, he had harassed her with phone calls, text messages and unannounced visits to her home, which was both unwanted and distressing.

7. On the day she called the police, she arrived home to find a flower on her bedroom windowsill. Suspecting that it had been left there by her former partner, she sent him a text and asked if he had been at her house that day. He confirmed that he had. Approximately a half an hour later, he visited her house and knocked on her door. She did not answer the door and his knocking continued for some time until she told him to leave. By this time she was concerned and scared of what he might do. He told her that he would not leave, and the only way that she could get rid of him was to kill him. That comment particularly frightened the applicant and she left her house and walked up the street to where she called the police from her mobile phone.

8. When speaking to the police, the applicant disclosed that during her relationship with her former partner, there had been times when he got angry and this lead them having many heated arguments. During one of those arguments, he pushed her in the chest causing her to fall over backwards.

9. She fell pregnant to him and told him about the pregnancy. She also told him that she wanted an abortion and did not want to keep the baby. He then started to harass her and demanded to be involved in the child's life. This made her feel uncomfortable and he was becoming too controlling. When she told him that their relationship was over, he immediately began to bombard her with text messages and telephone calls, most of the time telling her that he had an urgent matter to be dealt with and encouraging her to call him back. When she did call him back, he would tell her that he loves her and it was urgent that she know that.

10. To validate her claim about the domestic violence, the applicant provided the Tribunal with a copy of the police report about her complaint, along with the police protection notice served on her former partner which shows that he was interviewed by the police. His version about their relationship and the domestic violence allegation differed somewhat from the applicant’s. He said that when she fell pregnant (about three months previously), they attended the hospital to confirm her pregnancy. Since then, she had been avoiding him and not wanting to talk to him. He had been encouraging her to go to the doctors, but she avoided going to those appointments. He sent her flowers on a number of occasions to show his support to her, and about a week earlier, she told him not to talk to her anymore.

11. He was not even sure whether they were still together in a relationship, and he was confused as to the status of her pregnancy and the status of their relationship, but he wanted to be there for their child. He went on to tell the police that he went to her address that night to drop off flowers. He had earlier called her and then knocked on the door, but she would not answer the door. He only wanted to see her to confirm that she was still pregnant, but she would not talk to him.

12. The police report shows that the applicant was very fearful of her former partner and was crying when she spoke to police. She showed the police the text messages and call logs on her phone where her former partner had continuously called and sent her text messages, including a text message from the applicant to him asking him to stop messaging her.

13. The police formed a view, and were satisfied, that the relationship between the applicant and her former partner was over, and regardless whether she has an abortion or proceeded with giving birth to their child, she and her former partner were likely to still have future interactions with each other. Therefore, it was necessary and desirable to protect the applicant and her unborn child because her former partner had caused her fear, and he had engaged in behaviour which was both intimidatory and harassing towards her.

14. Prosecutorial action was then instituted against the applicant’s former partner with a view of obtaining a domestic violence protection order. In regards to the applicant’s former partner (and now a respondent in that domestic violence matter), she said that he was a PNG national and had been in Australia on a Student visa. She expects that when his visa expired he returned to PNG, and she has a well-founded fear that if she was to return to PNG herself, she faces a significant risk of him becoming aware that she has returned to PNG and that his persistent and unwanted behaviour would continue.

    Well-founded fear of harm

15. The applicant also told the Tribunal of her fears that if she returns to PNG, she has a well-founded fear that she will face significant harm because she believes her family members and rebels will torture her, treat her cruelly, and potentially threaten her life. She described the harm that she had experienced in [Town 1] and described being assaulted by her [brother] when she was aged 14. She and her [sister] had returned to PNG for a brief period and they attended school near where she was living. There had been discord between her uncle and her mother around that time, and her uncle gave the applicant and her sister a ride home from school. Her brother went to the school to collect the applicant and her sister, however they were not there because they had been taken home by their uncle.

16. This enraged the applicant’s brother. She described that he punished both the applicant and her sister for not being at the school. She was struck a number of time around the back of her legs with a stick, and this caused swelling and bruising to the back of her legs and she was not able to walk properly for the next three days. The applicant provided to the Tribunal a number of photographs of the marks, injuries and bruises caused to her legs at that time. The Tribunal accepts that those photographs go in favour of supporting the claims made by the applicant. The applicant went on to claim, which Tribunal accepts, that this traumatic incident underscores the potential threat and danger she faces if she returned to PNG as it highlights the volatile and abusive family environment she would be re-entering.

17. The Tribunal accepts that the applicant was assaulted by her brother on that occasion and the assault caused her to experience pain and suffering along with the injuries which are depicted in the photograph she provided. The applicant’s evidence that this was a traumatic incident for her to be assaulted in such a manner by her brother over what appears to be a misunderstanding between family members about who should collect her and her sister from school. The Tribunal also accepts that the applicant has a genuine fear of her brother because of the events which unfolded on that day.

18. The applicant went on to describe to the Tribunal that during the time that she was attending school in Australia, she was viciously assaulted in an unprovoked attack by another of her brothers. She was at home and her brother assumed that because she had been to a party, then she must have consumed alcohol. This was incorrect. He punched her a number of times in the face with such force that he fractured her eye socket. Her screams woke her sister who then came to her aid, however her brother also assaulted her sister. Both the applicant and her sister sought refuge with neighbours and the police and the ambulance were called. The ambulance tended to her injuries and transported he to the local hospital where she received treatment and was hospitalised for four days. During that time, she was required to wear an eyepatch which was particularly traumatic for her. To validate that claim, she provided the Tribunal with her medical records as well as photographs, and the Tribunal accepts she was assaulted by her brother on that occasion.   

19. The applicant continued on to tell the Tribunal that shortly after her discharge from hospital, the Department of Child Safety intervened, and her mother and brother fabricated a story about the incident to protect her brother’s visa status from being impacted by what he did. She claims that this is another example of the history within the family of severe familial abuse and lack of support from her parents, in particular her mother. This demonstrates the significant threat she faces if she were to return to PNG and underscores the danger and potential harm she was at risk of, particularly from members of her family who are waiting for her in PNG. She said that she has significant fear that she might be tortured or even be killed by her brothers.

20. In another incident, the applicant claimed that her [brother] sent her menacing text messages because he had heard that she had a boyfriend. He claimed that he had the right as her [brother] to physically discipline her for entering into that relationship without getting his prior approval. Those text messages contained threats that he would physically harm her, and it appeared that he showed no fear of any repercussions if he did so. The applicant was in Australia at that time and despite her concerns, her mother insisted that she and her [sister] fly back to PNG that month. Her mother assured the applicant that she would be safe and her mother would protect her, however when the applicant and her [sister] flew to Port Moresby, her mother took them to [Town 1] where [that] brother lived.

21. When they arrived in [Town 1], the applicant feared for her own safety and she and her [sister] locked themselves in, and hid in the bathroom. This did not deter her brother because when he arrived at the house he forcibly entered the bathroom and brutally attacked the applicant by kicking and punching her around the body and face.

22. She produced to the Tribunal photographs of her injuries resulting from that assault and the Tribunal accepts that evidence. It was the applicant’s evidence, which the Tribunal accepts, that this pattern of abuse and intimidation by her brother, coupled with his disregard for any repercussions shows that there is some justification for her to have a well-founded fear of serious harm if she were to return to PNG.

23. By way of a further example of her [brother’s] propensity to violence, she told the Tribunal about his history of imprisoning his previous girlfriends and subjecting them to severe violence. She described an incident where he caused significant harm to one ex-girlfriend by burning her with a heated steel object, and on another occasion he caused another former girlfriend to lose the sight in one of her eyes. All that was driven by jealousy and a desire to control his former partners. When carefully assessing that information, although the applicant did not specifically provide any substantiating evidence to support her claim in regard to the harm her ex-brother has purportedly caused to his former girlfriends, the Tribunal is satisfied and accepts that when that information is weighed against the harm he caused her, then the Tribunal finds that significant weight should be given to that information about the harm he caused to his former girlfriends.  

24. The applicant went on to tell the Tribunal about her [brothers] being implicated in numerous homicides within PNG, and because of that, they had gained widespread notoriety. She claimed that their ability to evade legal consequences is attributed to her mother who bribed police officers and compensated the victims' families with large sums of money. Although the applicant has made this claim, there is no evidence to substantiate her allegations and the Tribunal is inclined to give it no weight to the determination of her application.

25. The applicant gave a further example of how violent some members of her family are. She said that one of her [brothers] fatally assaulted a man from another tribe during a dispute. The victim's family demanded stringent action from the police, however, no action was taken because no formal complaint was filed. The applicant's mother intervened by bribing a police officer and offering financial compensation of PGK [amount] to the victim's family. The victim’s family accepted the offer. Without any substantiating evidence to support that claim, the applicant gives that claim neutral weight to that information in the determination of this matter.

26. The applicant told the Tribunal that despite her brother causing the death of someone else, this highlighted the weakened rule of law and the corruption within the PNG police force. She went on to say that this demonstrates her legitimate fear of reprisal and lack of protection from the PNG authorities if she were to return to PNG and she would be subjected to violence by her brothers. Although the Tribunal accepts the applicant’s contentions that she has a well-founded fear of being harmed by her family members, the Tribunal is satisfied that there is no evidence to show that any member of the PNG police force engaged in any corrupt activity.

27. The applicant's evidence also touched on the recent elections of 2023 in PNG when her [Relative A] ran for the Governor's seat in the Enga Province. Because her [Relative A] was a sole female candidate for the elections, this sparked political tensions and lead to a violent fighting between various tribes and the death of women, children and men and the destruction of infrastructure such as houses, hospitals and schools in Enga province. The Tribunal accepts that there is an abundance of country information on various online news outlets which validates the applicant’s claim about the violence in Enga province. The applicant went on to say that within that violence, her [Relative B] was viciously assaulted and narrowly escaped with her life after a machete attack aimed at her head. A number of photographs of her [Relative B] suffering those injuries were provided to the Tribunal and it is accepted that the photographs are a true reflection of the violence which occurs during tribal fights.  

28. In regard to more recent events, in [specified year] the applicant gave birth to her child. She told the Tribunal that she had a relationship with two men who were PNG nationals and neither of them are willing to participate in DNA testing to determine which one of them was the biological father. She no longer has a relationship with either of those men and because she is now a single mother, this is considered in her family’s culture as an omen which heightens the risk of social stigma towards her. She claims that she would be ostracised with potential retaliation against her and her child, and she has a well-founded fear of experiencing serious or significant harm to herself and her child if she returned to PNG because of those reasons just discussed.

29. The applicant went on to tell the Tribunal that because she is a single mother, one of her [brothers] has already targeted her with threats and innuendo of her being harmed. She described that in PNG culture, an unmarried women having children typically brings shame upon the family and there is a requirement to keep the birth of the child secret to avoid repercussions such as physical abuse or death. She described that she has a well-founded fear that if she and her child were to return to PNG she would be beaten or even killed as a consequence of dishonouring her family. She has been threatened with brutal beatings by her brother and she also faces severe consequences for dishonouring her family. The Tribunal is satisfied that this situation highlights the imminent danger she potentially faces if she returns to PNG where cultural norms and familial expectations could subject her to severe violence and threats to her life due to the perceived dishonour brought upon her family.

    Gender-based violence

30. Available to the Tribunal is credible and reliable country information relating to gender based violence in PNG. That information suggests that PNG has one of the highest rates of gender-based violence in the world[21] and the violence is increasingly exponentially[22] and almost all women and girls will in PNG be subject to violence at some point in their lifetime. The last national survey conducted in 2016-2018 found that 58 per cent of women aged 15 to 49 had experienced physical violence since the age of 15 and 28 per cent had experienced sexual violence. A Parliamentary group formed to address gender-based violence estimates that one woman is beaten every 30 seconds in PNG and there are 1.5 million victims of gender-based violence every year. DFAT assesses that women in PNG face a high risk of gender-based violence, regardless of their social status.[23]

    [21]Rethinking perceptions of spousal violence in PNG, DevPolicy, Mambon K, 22 February 2023, accessed 12 January 2024.

    [22]Inquiry into gender equality policies and institutions, gender-based violence and sorcery accusation related violence, Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment, October 2023, page 13.

    [23]The DFAT Country Information Report. Papua New Guinea, 6 September 2022, page 15.

1. There is a reluctance by authorities to intervene in gender-based violence cases, and in many of these cases many police officers, and more broadly, the society consider it to be a private issue in which the state should not intervene. Police officials have stated they cannot keep women and children safe and that they lack resources to thoroughly investigate gender-based violence cases.[24] Consequently state protection is rarely available for women experiencing gender-based violence and DFAT assesses that women who experience gender-based violence are unlikely to be able to avail themselves of adequate state protection.[25]

   [24]United States of America State Department Country Reports on Human Rights Practices for 2022,  Papua New Guinea, 20 March 2023, page 12.

   [25]The DFAT Country Information Report. Papua New Guinea, 6 September 2022, page 16.

2. The country information suggests that in response to domestic violence issues, the police force has established family and sexual violence units in every province; however, they lack adequate resources. Although interim domestic violence protection orders and longer-term protection orders are available within PNG, the reality is they are rarely issued and the police lack the inclination and resources to enforce them.[26] A further complicating feature is that the judiciary lacks sufficient resources to process the gender-based violence cases it receives.[27] Under PNG’s legal system, Village courts play a significant role in dealing with gender-based violence cases, and under that system, the village chiefs prefer to negotiate the payment of compensation to survivors of abuse instead of detaining and potentially charging offenders.[28]

   [26]The DFAT Country Information Report. Papua New Guinea, 6 September 2022, page 16.

   [27]Gender-based violence in PNG probed by seminal hearing, Radio New Zealand, 25 May 2021, accessed 12 January 2024.

   [28]United States of America State Department Country Reports on Human Rights Practices for 2022,  Papua New Guinea, 20 March 2023, page 13.

   Member of a particular social group

3. The Act provides that a person is a refugee if they are outside the country of their nationality and owing to a well-founded fear of persecution, they are unable or unwilling to avail themself of the protection of that country.[29] The issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in section 5J(1)(a) of the Act.

   [29]Migration Act 1958 (Cth), s 5H.

4. That is, 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; and there is a real chance that, if the person returned to the receiving country, they would be persecuted for one or more of the reasons mentioned above; and the real chance of persecution relates to all areas of a receiving country.[30]

   [30]Migration Act 1958 (Cth), s 5J.

5. In respect to this matter, the Tribunal is satisfied (and so finds) that a characteristic of the applicant is that she is a single mother of a young child born in [year], and that if she returned to  PNG, she would share the characteristic of other single mothers in respect to her marital status and motherhood.[31] Therefore, the Tribunal is satisfied (and so finds) that this places her within a particular social group.

   [31]Migration Act 1958 (Cth), s 5(a) and s 5(b).

6. Although the characteristic is not a fear of persecution,[32] those shared characteristics are innate;[33] and the characteristic distinguishes the group from society.[34] The High court found that:

   ….to determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community.[35]

   [32]Migration Act 1958 (Cth), s 5L(d).

   [33]Migration Act 1958 (Cth), s 5L(c)(i) noting the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), page 178 at [1220].

   [34]Migration Act 1958 (Cth), s 5L(c)(iii); Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 that a particular social group can be distinguished from the society at large.

   [35]Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387, 394.

7. Consistently, Australian courts have determined that the definition of ‘particular social group’ should be interpreted broadly, [36] and overall, the courts have accepted that women, or a subgroup of women, can comprise a social group and women in any society are a distinct and recognisable group.[37]

   [36]Re Gustavo Carlos Saavedra Morato v the Minister of Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401; Minister for Immigration and Ethnic Affairs v Respondent “a”, Respondent “B” and Janet Wood, the Refugee Review Tribunal (1995) 57 FCR 309; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293.

   [37]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.

8. In that regard, when considering the country information on PNG, the Tribunal is satisfied (and so finds) that the applicant belongs to a particular social group in that she is female, and that she would be a single mother of a young child within the society of PNG.

   CONCLUSION AND REFUGEE FINDINGS

9. The very nature of a review proceedings is that the Tribunal is to undertake the review from the beginning (anew) and review the material, information and evidence made available to it, and fresh consideration should be applied to that material, evidence and information. The Tribunal is to make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. In doing that, the Tribunal is not bound by technicalities, legal forms or rules of evidence; but must act according to substantial justice and the merits of the case.[38]

   [38]Migration Act 1958 (Cth), s 420.

10. Although the very nature of a review hearing is inquisitorial, and the Tribunal can seek out evidence it requires in order to reach a determination, it does not however have any obligation to seek out evidence to support the applicant’s claims, even though the Tribunal is entitled to do so.[39]

    [39]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

11. The Tribunal is not required to make the applicant’s case for her and it is her responsibility to specify all particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of her claims, or to establish or assist in establishing her claims.[40] Nor is the Tribunal required to accept uncritically any of the allegations made by the applicant.[41]

    [40]Migration Act 1958 (Cth), s 5AAA.

    [41]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

12. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because she claims that she will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

13. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons.

14. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to PNG, there exists a real risk that she will suffer significant harm or there is a real chance she would suffer serious harm because of the reasons she claimed, and whether there are substantial grounds for believing that she is a member of particular social group as defined in section 5J(1)(a) the Act.

15. Indicated earlier in these Reasons is the Tribunal’s determination that the applicant is a member of a particular social group, and having very carefully assessed all the facts, features and circumstances of this matter, the Tribunal is satisfied (and so finds) that there is a real chance that, if the applicant returned to PNG, she would be persecuted because she is a member of a particular social group; and the real chance of persecution relates to all areas of a receiving country

16. In respect to her protection claims, the Tribunal is satisfied (and so finds) that after carefully considering her evidence, what she told the Tribunal was consistent with the information, evidence and material that she presented to the Tribunal. Therefore, the Tribunal finds that she is reliable and credible witness. 

    CONCLUSION: REFUGEE CRITERION

17. Therefore, the Tribunal is satisfied that the applicant has a well-founded fear of persecution if she returns to PNG in that she will be persecuted for reasons prescribed in section 5J(1)(a) of the Act, and the Tribunal is satisfied that she is a refugee as defined in section 5H(1) of the Act. Accordingly, the Tribunal finds that she is a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

    DECISION

18. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

    Wayne Pennell

    
    

    Senior 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.

    …