2402380 (Refugee) - [2024] ARTA 584

2402380 (REFUGEE) [2024] ARTA 584 (30 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2402380
Tribunal:General Member M Bailey
Date:30 October 2024

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

Statement made on 30 October 2024 at 4:59pm
CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea – victim of domestic violence – fears serious harm from ex-husband – significant discrepancies in the applicant’s evidence – relationship with another man in Australia – delay in applying for protection in Australia – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65, 359, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 19 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 21 August 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.
The applicant appeared before the Tribunal on 28 October 2024 by video conference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
BACKGROUND
The applicant, a [age]-year-old female, last arrived in Australia on [date] May 2023 on a visitor (subclass 600) visa. As outlined in the delegate’s refusal decision, she had previously travelled to Australia as the holder of a visitor visa between [date] February 2023 and [date] May 2023.
As part of her protection visa application, the applicant provided a copy of her current Papua New Guinea (PNG) passport and her National Identity Card. The delegate accepted that the applicant is a citizen of PNG and there is no information before me to the contrary. I find that the applicant is a citizen of PNG, and that PNG is her receiving country for the purposes of assessing her claims for protection.
Evidence before the Department
Protection visa application
The applicant received assistance with her protection visa application from the Refugee and Immigration Legal Service (RAILS). A summary of relevant biographical information from the protection visa application is below:
i.She was born and resided in Port Moresby. Her religion is Lutheran.
ii.Her relationship status is ‘Separated’ and her ex-spouse is [Mr A] who currently resides in PNG.
iii.She has a daughter (name provided) born in [year] who is currently residing in Port Moresby.
iv.Her mother’s name is [Ms B] and her father’s name is [Mr C]. She has 2 younger brothers (names and dates of birth provided).
v.From birth until 16 June 2018, she resided at an address in [address]. Between 17 June 2018 and 21 January 2023, she resided at an address in [Suburb 1], Port Moresby. Between 22 January 2023 and 12 February 2023, she resided at an address in [Suburb 2], Port Moresby.
vi.She attended high school in Port Moresby between February 2016 and October 2017.
vii.She operated a [stall] in [Suburb 1], Port Moresby, between March 2018 and January 2023.
Regarding her claims for protection, she stated (in summary):
i.She left PNG to escape her abusive partner, [Mr A]. Their relationship began in 2016. He started to abuse her in [2018], while they lived together in Port Moresby.
ii.[Mr A] was physically and sexually violent toward her. Every weekend, he would go out drinking, bring other women back to the house and force her to have group sex. If she refused, he would beat her or force her into sexual acts.
iii.In 2020 she went to the police at [Suburb 2]. The did not help her and told her to sort it out herself. She asked her family, who live in [Town 1], for help but they told her that it was a family matter and to return to her partner. They told her that she had given up school for this life and had to accept it. She cannot call her family as they do not have phones. She made contact with them via her uncle [Mr D] when he was travelling to [Town 1] and he told her of their response. He told her that her family don’t want to hear from her again.
iv.She left [Mr A] in January 2023 and stayed for a few weeks at [Suburb 2]. She feared for her life and had no-one to help her. She travelled to Australia in February 2023 on a visitor visa. While in Australia she was told by a church member that she could remain and seek safety but she could not cope with leaving her daughter in PNG.
v.She returned briefly to PNG in May 2023 and went to [Mr A]’s house to see her daughter. [Mr A] was violent toward her and did not allow her to see her daughter. She returned to Australia on [date] May 2023 to seek protection.
vi.If she returns to PNG she fears that [Mr A] will physically or sexually abuse her and that she may contract HIV/AIDS from being forced into group sex. If she does not return to live with [Mr A], she would have nowhere to go as her parents will not accept her. She fears that she would be homeless in Port Moresby which would be dangerous for a woman.
The applicant submitted a Statutory Declaration dated 8 November 2023. A summary of relevant information from this document is below:
i.She lived with her parents ([Mr C] and [Ms B]) and her 2 brothers in Port Moresby until mid-2018. Her father worked in Port Moresby as a [Occupation 1] and her mother was a housewife. She completed [a grade] of high school before leaving in October 2017.
ii.She met [Mr A] in around July 2016, while they were both at high school. They started a relationship a few weeks later but kept this hidden from their parents. They commenced a sexual relationship in around November 2016. In [year] she discovered that she was pregnant and this became known to her parents. Her father was very angry and forced her to take him to [Mr A]’s house. He told [Mr A]’s parents that she was now their responsibility and she had to live with them.
iii.[Mr A]’s parents and three sisters treated her well. She gave birth to her daughter in [year]. In around mid-December 2018 she started operating a [stall] in front of [Mr A]’s house and used this income to support her daughter and save some money.
iv.[Mr A]’s behaviour toward her changed in around November 2018. He spent most of his time out with friends and avoided contact with her and their daughter. He arranged for her and their daughter to sleep in a different room. She thinks he did not want to be a father and blamed her for the birth.
v.On 31 December 2018, while his family was away in their village, [Mr A] went out with friends and returned with another man and 2 women. He and his male friend sexually harassed her in front of his female friends. In mid-January 2019 [Mr A] again brought friends to the house one night. He forced her to watch him have sex with his female friends and when she refused to engage in group sex, he told one of his male friends to sexually assault her.
vi.She was scared to talk with [Mr A]’s family about these incidents because he had threatened to kill her. He had strong influence over his mother and sisters and had told them not to share information with his father concerning their relationship.
vii.In around mid-2020, after [Mr A] punched her on the face when she refused to have sex with him, she went to the [Suburb 2] police station to file a report. She was told that it was a family matter and to sort it out at home.
viii.Her family had moved to [a] Province in around August 2018, before her daughter was born. She has no direct contact with them as they do not have a phone. The only contact she had with them after moving in with her partner was when she asked her uncle [Mr D] to tell her parents that she needed help due to the domestic violence. Her parents told her uncle that they wanted nothing to do with her and did not want to hear from her again. She also asked her uncle, [Mr D], for help but he said there was nothing he could do.
ix.She asked her uncle, [Mr E], if she could live with him. He said he could not offer her accommodation but could help her with applying for a visitor visa and plane ticket to Australia. Her uncle spoke with a visa agent in Port Moresby and provided the relevant information for the visa application. She was not aware of the information he provided. She only became aware of that information when RAILS obtained a copy of her visitor visa file from the Department. She is not sure why her uncle stated himself and his wife as her parents and his children as her siblings. She confirms that the information she has provided in her protection visa application regarding her family members is correct.
x.She experienced domestic violence from [Mr A] until January 2023, when she escaped to a friend’s house while waiting for her visa to be granted. During the few weeks that she stayed with her friend she mostly remained in the house to avoid her partner locating her.
xi.She arrived in Australia on [date] February 2023 and stayed with a church friend in Queensland. She shared her experiences of domestic violence with this friend who told her about a protection visa. However, she was worried about her daughter in PNG and returned to Port Moresby on [date] May 2023. When she went to [Mr A]’s house to see her daughter, he pushed her to the ground and accused her of sleeping with other men during her absence. She stayed with the same friend as previously for a few weeks before returning to Australia on [date] May 2023.
xii.She thinks [Mr A] is aware that she has come to Australia to seek protection. In around September 2023 she received a [social media] request from his sister. She feared that he was using his sister’s account to contact her and immediately de-activated her [social media] account.
xiii.If she were to return to PNG she fears serious harm from [Mr A]. He has power over her because of their daughter and would be angry because she escaped and sought protection in Australia. She would be unable to live with her family as they have cut off contact with her. She cannot ask her uncle to care for her as he has his own family to care for and does not want to create problems with her father. If she cannot live with [Mr A] she would be homeless on the streets of Port Moresby.
xiv.She has recently found out that she is pregnant. She fears that this would increase the risk of harm from [Mr A] or other men.
Protection visa interview
The applicant attended an interview with the Department on 9 November 2023, accompanied by a representative from RAILS. Relevant evidence from the interview, as outlined in the delegate’s refusal decision, is summarised below:
She is currently in a relationship with a man from PNG who is residing in Australia on a student visa. He is the father of the child with whom she is currently pregnant.i.
ii.Her uncle, [Mr E], is her father’s brother who lives in Port Moresby. He made the arrangements for her visitor visa application. Asked whether she saw the application, she stated no. When it was raised by the delegate that her signature is on the family composition form, she responded that she saw this form but did not realise that her uncle would be attaching it to the application. She reiterated that she does not know why her uncle included incorrect details regarding her family composition in the visitor visa application.
iii.Asked whether she had a birth certificate, the applicant responded that she applied for one in 2018 but only received a National Identification Card, not a birth certificate.
iv.Asked whether she had a birth certificate or other identity documents for her daughter, or any photos of her daughter, the applicant responded no. Asked whether she was legally married to [Mr A], she stated no.
v.Asked why she ceased operating her [stall] in December 2022, she responded that she was planning to escape from [Mr A]. She confirmed that when she left his house in January 2023, she did not take her daughter with her. She planned to stay at her friend’s house for a few days and return for her daughter. However, when [Mr A] realised she had escaped, he hid their daughter from her.
vi.Asked why, if she had planned to leave [Mr A] from December 2022, she did not arrange to bring her daughter with her and collect relevant documents, the applicant stated that she was unsure she would be able to seek help in Australia and feared that [Mr A] would search for them.
Delegate’s decision
The delegate did not accept the applicant’s family composition as claimed in her protection visa application and found that her parents were as stated in her visitor visa application.
The delegate did not accept that the applicant was in a relationship with [Mr A] in PNG, nor that they had a child together. As such, the delegate did not accept the claimed abuse from [Mr A] as credible.
The delegate accepted that the applicant was pregnant and in a relationship with a man in Australia. However, the delegate found that she had a supportive family in Port Moresby, who had assisted her with her visitor visa application to Australia and would not be without male protection if she were to return to PNG.
Evidence before the Tribunal
Pre-hearing evidence
Prior to the Tribunal hearing the applicant submitted copies of several photos (discussed below), together with the following documents:
i.Two letters dated 1 August 2024 from a doctor at [a clinic]. One of these letters states that the applicant has been attending the clinic since March 2024 and has discussed her biological daughter in PNG. The author confirms that the applicant’s documented obstetric history includes the delivery of a daughter in PNG. The other letter requests that consideration be given to the applicant’s mental state at her Tribunal hearing as she has been experiencing post-natal depression which is likely to affect her concentration, memory and ability to respond under pressure.
ii.Letter dated 12 September 2024 from a doctor at the [clinic] stating that the applicant has experienced post-natal depression since the birth of her son on [date]. This is likely to impact on her memory and concentration at the Tribunal hearing and a request is made for this to be taken into consideration.
iii.Letter dated 18 September 2024 from a Counsellor [Organisation 1] confirming that the applicant has been attending perinatal counselling since the birth of her son in Australia, during which she has spoken about experiencing domestic violence and grief due to the separation from her minor daughter in PNG.
Oral evidence at hearing
At the commencement of the hearing, the applicant stated that she wished to correct some information she had previously provided as part of her protection visa application. She did not provide the correct details for her family members. Her parents are [Mr E] and [Ms F], not [Mr C] and [Ms B]. She confirmed that the details of her parents and siblings as recorded in her visitor visa application are correct. Asked why she provided incorrect details of her family in her protection visa application, she stated that her parents live in Port Moresby and she feared that she would be sent back to Port Moresby where [Mr A] lives.
Her oldest brother, currently aged [age], is married and lives in Port Moresby with his wife. Her second oldest brother, aged [age] years, lives with her parents in Port Moresby. Her youngest brother, aged [age] years, is at school and also lives with her parents. Her father works as a [Occupation 2]. She maintains contact with her parents and brothers.
Her son was born in [Australia]. A few weeks after his birth, his father ended their relationship as he did not want to tell his family that he had a child. She has told her family in PNG about the birth and the relationship ceasing. Asked how they reacted, she stated that they feel sorry for her.
She confirmed that she continues to fear harm from her former partner, [Mr A]. Asked whether she has support from her parents, she stated yes but [Mr A] has been threatening her parents.
She also wished to correct her previous evidence regarding how she met [Mr A]. She met him through friends and they had a ‘one-night stand’. She later found out she was pregnant. She told her parents who then met [Mr A]’s parents. His father wanted the applicant to live with them because she was carrying [Mr A]’s child, but she later learnt that [Mr A] did not want her there.
She lived with [Mr A]’s family from early to mid-2018 until a few days before her first departure from PNG on [date] February 2023. She confirmed that the information provided to the Department regarding the abuse from [Mr A] is correct. She maintained contact with her family while living with [Mr A]. Her family was aware that [Mr A] was abusive toward her, but she did not share with them the full details.
Asked about her parents’ response to the abuse, she stated that they wanted to remove her from [Mr A] but he had paid a bride price and it is customary in PNG for a married woman to be viewed as the property of her husband. When asked whether she was customarily married to [Mr A], she agreed that they married when her daughter was [approximate age] years old. I raised that this appears inconsistent with her evidence to the Department where she claimed that she had not married [Mr A].
When asked if she had discussed with her parents whether she could return to live with them, she responded that she stayed with them after arguments with [Mr A] but could not remain because [Mr A] was threatening to harm her parents and she did not want them to be in danger. I discussed with the applicant she had not previously raised with the Department any threats of harm from [Mr A] toward her parents. She responded that she had not previously disclosed the real names of her parents.
She has had no contact with [Mr A] since arriving in Australia. Her daughter is living with [Mr A] and his family in Port Moresby. She speaks with her daughter when her parents go to visit her at [Mr A]’s family home.
Regarding the photos submitted to the Tribunal, she stated that several show her with her daughter before she came to Australia. A few of the photos are of [Mr A], including one with their daughter and his baby niece. Two group photos are of [Mr A]’s family.
Regarding her education, she confirmed that the information provided in her protection visa application (that she completed [a grade in] high school in late 2017) is correct. Asked whether she has undertaken any further studies since then, she stated no – she was pregnant and did not return to school after the birth of her daughter because [Mr A] was very jealous and did not agree to her continuing her schooling.

I discussed with the applicant that her National Identity Card issued on [date] October 2019, a copy of which was submitted to the Department as part of her protection visa application, records her address as [Address 1] in Port Moresby. Asked about this address, she stated that she was living in [Suburb 1] at that time but attended [Address 1] to apply for her National Identity Card. She was unable to explain why the address at which she had lodged her application would be recorded on her National Identity Card.
The applicant confirmed that her father started making arrangements for her visitor visa in around March 2022. Asked about her intentions at that time regarding her travel, she stated that her aunt’s friend had come to Australia because of domestic violence and her aunt told her father that the applicant could do the same. She confirmed that her intention was to come to Australia and seek protection because of the abuse from [Mr A].
She confirmed that her visitor visa had been granted in April 2022. I discussed with the applicant that PNG’s international borders were re-opened following Covid-related closures on 1 July 2022. Asked why she remained living with [Mr A] in Port Moresby until February 2023 given that she could have departed from July 2022, she stated that she had no money. I raised with the applicant (as further discussed below) that her father had provided financial support for her visitor visa application. She responded that she is aware he provided a bank statement, but he did not have sufficient funds for her travel and she needed to save money before departing.
Asked why she returned to PNG in May 2023 if her intention on departure in February 2023 was to apply for protection in Australia, she responded that she returned for her daughter but it was difficult because she was with her father. I raised with the applicant that I may have concerns regarding this explanation given that she would have been aware of this at the time she departed in February 2023.
In accordance with s 359A of the Act, I raised with the applicant the following information which had been submitted to the Department as part of her visitor visa application lodged in March 2022. I explained the relevance of this information and that I may rely on it as part of the reason for affirming the delegate’s refusal decision and invited her to comment on the information.
i.A copy of her birth certificate issued on [date] October 2019 was provided as part of her visitor visa application. This records her parents as [Ms G] and [Mr E] and her father’s occupation is recorded as ‘[Occupation 3]’. I explained that this was inconsistent with her evidence to the delegate (as reflected in the refusal decision) that she had never been issued with a birth certificate. It also appears inconsistent with her evidence to the Tribunal that her father works as a [Occupation 2]. She responded that she was not aware of having a birth certificate and her father was previously a [Occupation 4] but not a [Occupation 3].
ii.A copy of a letter of support from her father dated 3 March 2022, together with a bank statement as evidence of funds to cover her travel, was provided as part of her visitor visa application. This letter refers to her father’s address as [Address 2] in [Suburb 2], Port Moresby. The visitor visa application provides her residential address as [Address 2] in [Suburb 2]. This appears inconsistent with her claim that her father was not employed as a [Occupation 3] and that she was residing in [Suburb 1] with [Mr A]’s family at this time. She responded that her parents live in [Suburb 2] but not at [Address 2] and reiterated that her father was previously a [Occupation 4] but is now a [Occupation 2].
iii.A copy of a ‘Conditional letter of offer’ dated 1 February 2022 from [College 1] in Port Moresby [was] provided as part of her visitor visa application. This letter is addressed to her and advises that her application to the college to study [Course 1] was successful. The visitor visa application states that she undertook [Course 1] at [College 1] between February and December 2022. This information appears inconsistent with her claims that she did not undertake any further studies after late 2017. She responded that she applied to study [Course 1] and received confirmation of acceptance but did not take up the offer.
Asked whether there is any other reason she fears returning to PNG, she stated that she now has a son from a different partner and this would cause problems with [Mr A] as he paid a bride price for her. Asked whether she still fears that she would be without family support or homeless as previously claimed, she responded that if she stayed with her parents this would place them at risk of harm from [Mr A].
I discussed with the applicant that, while I have not made up my mind, the extent and nature of the inconsistencies between her evidence to the Department and the Tribunal and between her visitor visa and protection visa applications may cause me to find her account to not be credible. She responded that she received assistance from RAILS with her protection visa application but has not received any legal assistance with her review application.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. For the following reasons, I have concluded that the decision under review should be affirmed.
Criteria for protection visa and mandatory considerations
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44; SZLVZ v MIAC [2008] FCA 1816 at [25]
As detailed below, I have significant concerns with key aspects of the applicant’s claims. There are various inconsistencies, omissions, and implausible aspects in the applicant’s account. Having regard to the overall consistency and coherence of the applicant’s account and the nature and extent of these concerns, I am satisfied that in totality they significantly undermine the credibility of her claims.
I have taken into account the applicant’s responses to concerns raised and the information from the [clinic] letters regarding her mental health following the birth of her son in June 2024. I accept that she has a young baby and has been diagnosed with post-natal depression which may impact on her concentration and memory. I also accept that the father of her child ended their relationship shortly after the birth and this has caused distress for the applicant. However, I do not consider these factors to sufficiently address my significant credibility concerns outlined below.
I acknowledge that the [Organisation 1] letter states that the applicant has disclosed experiences of domestic violence. However, given that this is based on the applicant’s assertions and in light of my significant credibility concerns with the applicant’s claims, I have given this no weight. Given the extent and nature of my credibility concerns, I do not consider this to be an appropriate case to apply the ‘benefit of the doubt’ principle.
There have been significant discrepancies in the applicant’s evidence regarding her family composition between her visitor visa and protection visa applications and in her evidence to the Department and to the Tribunal. She acknowledged to the Tribunal that her correct family composition is as provided in her visitor visa application. I find that in respect of her parents’ identities, this is also supported by her birth certificate. I accept that her correct family composition is as recorded in her visitor visa application. At the Tribunal hearing she indicated the reason for the provision of incorrect information to be related to her fear of returning to Port Moresby and referred generally to fearing harm from [Mr A]. I am not satisfied that this adequately explains why she provided incorrect details regarding her family composition and consider that this was for the purpose of strengthening her claims for protection.
There have been significant discrepancies in her evidence about the nature of her relationship with her family. Before the Department, she claimed that she had been estranged from her parents and siblings, who were residing in [Town 1], from mid-2018. According to her oral evidence to the Tribunal, she maintained contact with her family, who reside in Port Moresby, while in PNG and following her arrival in Australia. I accept her oral evidence to the Tribunal to be credible and consider that her previous claims to the Department were for the purpose of strengthening her claims for protection.
There are discrepancies in her evidence regarding her father’s employment and her place of residence. She claimed to the Department that her father (at that time being [Mr C]) was a [Occupation 1] while living in Port Moresby, whereas before the Tribunal she claimed that her father ([Mr E]) is a [Occupation 2]. She claimed to the Department and Tribunal that she resided with [Mr A]’s family at [Suburb 1], Port Moresby between mid-2018 and February 2023. However, I find these claims to be inconsistent with the following:
i.Information in her birth certificate issued in October 2019 which records her father’s occupation as a [Occupation 3].
ii.Information in her visitor visa application and the support letter from her father (both dated March 2022) which records her residential address and that of her father as ‘[Address 2].
iii.Information in her National Identity Card issued in October 2019 which records her address as ‘[Address 1].
While I have had regard to the applicant’s responses to this information at the Tribunal hearing, I am not satisfied that they address my concerns. The birth certificate and National Identity Card were issued in October 2019 and the visitor visa documentation dates from March 2022. I find this evidence in totality to indicate that, as at those dates, her father was employed as a [Occupation 3] and she and her family resided at [Address 1] in Port Moresby. I do not consider her explanation to the Tribunal as to why [an address] which was not her residential address would be recorded on her National Identification Card to be plausible. I find that as at March 2022 her father was employed as a [Occupation 3] in Port Moresby and that while in PNG the applicant resided with her family in Port Moresby.
The applicant maintained to the Tribunal that she has a[age]-year-old daughter with [Mr A] and that she experienced abuse (as detailed in her evidence to the Department) from [Mr A] during the course of their relationship. The delegate did not accept the existence of [Mr A] or the applicant’s daughter. However, based on the supporting evidence provided to the Tribunal of [Mr A] and her daughter in the form of photos and the [Clinic] letters, I accept that she has a [age]-year-old daughter with [Mr A].
However, for the reasons below I do not accept her claims of physical and sexual abuse by [Mr A] to be credible:
i.Her claim to have not undertaken any further studies following late 2017, including because of [Mr A]’s disapproval, is inconsistent with the [College 1] Letter and the information in her visitor visa application indicating that she completed [Course 1] between February and December 2022. I do not consider her explanation to the Tribunal – that she applied and was accepted into the course but did not take up the offer – to be convincing given the details recorded in her visitor visa application.
ii.I find the delay of approximately 7 months in departing PNG following the reopening of PNG’s borders on 1 July 2022, at which time she had been granted a visitor visa to Australia, to significantly undermine her claims regarding the abuse from [Mr A]. According to her Statutory Declaration submitted to the Department, she was experiencing domestic violence from [Mr A] until January 2023 at which time she escaped to a friend’s house while awaiting the grant of her visitor visa. Before the Tribunal she corrected this to claim that she remained living with [Mr A] until a few days prior to her departure for Australia. In either case, there remains a significant period of delay in departing PNG in circumstances where she claims to have been seeking to escape from [Mr A] since commencing arrangements to apply for a visitor visa in March 2022. I have considered her response to the Tribunal that she did not have sufficient money to depart earlier. However, given her father’s support in relation to her visitor visa application and my finding above that she was residing with her family, I am not satisfied that this is credible.
iii.I find the applicant’s return to PNG in May 2023 to significantly undermine her claims regarding the abuse from [Mr A]. She confirmed to the Tribunal that her intention in applying for a visitor visa in March 2022 was to come to Australia to seek protection. Yet after departing PNG in February 2023, she returned in May 2023. She stated to both the Department and the Tribunal that she returned in an attempt to bring her daughter with her to Australia. While I accept that she would wish to reunite with her daughter, I do not find this explanation to be plausible considering that she had 7 months to prepare for her initial departure and, if her claims regarding [Mr A] were credible, she would have been aware at the time of her return in May 2023 that he was unlikely to allow her to take their daughter.
Considering all the above, I do not accept that the applicant experienced any physical, sexual or other abuse from [Mr A] or that he has been seeking to locate her in Australia.
The applicant raised with the Tribunal that [Mr A] had been threatening her parents. As discussed with the applicant, there had been no previous mention of threats toward her parents. While I acknowledge her response that she had previously not provided true details of her parents, I am not satisfied that this adequately addresses my concerns. I note that she was legally represented in relation to the preparation of her protection visa application and at the protection visa interview. Given my findings above regarding the claimed abuse from [Mr A] toward the applicant and my overall concerns about the reliability of the applicant’s account, I do not accept as credible that he has been threatening her parents.
The applicant also raised claims with the Tribunal that she had customarily married [Mr A] in around 2021 or 2022 and he had paid a bride price to her family. As reflected in the delegate’s refusal decision, she was asked at the protection visa interview whether she was legally married to [Mr A], to which she responded no. I acknowledge that there is a distinction between legal and customary marriages in PNG[2] and accept that the applicant may have understood the delegate’s question to be limited to legal marriage. I also acknowledge that bride price payment, a long-standing Melanesian tradition intended to strengthen familial bonds, remains a common cultural practice in PNG. In recent years it has become increasingly monetised and led to a sense of ‘ownership’ of wives in some cases, giving husbands a sense of entitlement which can be seen as permitting violence.[3]
[2] PNG Civil and Identity Registry: What is marriage? What is Marriage? – PAPUA NEW GUINEA CIVIL AND IDENTITY REGISTRY
[3] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 16
However, I have concerns as to why, if bride price payment was genuinely an issue, the applicant did not raise this with the Department. As noted above, she was legally represented in relation to the preparation of her protection visa application and at the protection visa interview. Given my findings above regarding the claimed abuse from [Mr A] toward the applicant and my overall concerns about the reliability of the applicant’s account, I do not accept as credible that the applicant customarily married [Mr A] and/or that he paid a bride price to her family.
While the applicant previously claimed to the Department that she would be returning without the support of her family, she acknowledged to the Tribunal that she does have the support of her family. She confirmed to the Tribunal that her parents are aware of the birth of her son and have expressed their sorrow for her regarding the breakdown of her relationship in Australia. She claimed that returning to live with her parents in Port Moresby would place them at risk of harm from [Mr A]. However, given my findings above, I do not accept that to be credible. I find the applicant would be returning to Port Moresby with the support of her parents and siblings, including 2 adult brothers.
Refugee and complementary protection assessment
I find the applicant’s ‘home area’ or place of likely return to be Port Moresby given that this was her previous place of residence and the place where her family continue to reside. Considering the above factual findings, I am not satisfied that the applicant faces a real chance of harm from [Mr A] in the reasonably foreseeable future if she were to return to Port Moresby. In reaching this finding, I have considered the applicant’s claim that her return to PNG with her son from a different relationship would give rise to a risk of harm from [Mr A]. However, given my findings above regarding the claimed abuse from [Mr A], their customary marriage, his payment of a bride price and threats toward her parents, I am not satisfied there is a real chance that he would harm the applicant because of the birth of her son or her relationship with another man in Australia.
I acknowledge country information regarding the prevalence of gender-based violence in PNG. According to DFAT, violence against women and girls in PNG is very common, among the most common in the world, and sources report that almost all women and girls will be subject to violence at some point during their lives.[4] However, I must consider whether the applicant, in her particular accepted circumstances, faces a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of her return to PNG.
[4] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 15

I find that the applicant would be returning to Port Moresby as a single woman with 2 children. I acknowledge that PNG is a patriarchal society, where women are traditionally dependent on a male partner or guardian for their economic and physical security.[5] I am satisfied that the applicant would return to live with her parents in Port Moresby where she would have strong family support, including the protection of her father who has worked as a [Occupation 3] and 2 adult brothers. Other than the claimed harm from [Mr A] which I have not accepted as credible, the applicant has not claimed to have experienced any other gender-based violence in PNG.
[5] Department of Foreign Affairs and Trade, Country Information Report: Papua New Guinea, 6 September 2022, p 24
In the applicant’s particular circumstances, I find that there is not a real chance, being a possibility that is not remote or far-fetched,[6] that she will experience harm as a single woman or a single woman with children in the reasonably foreseeable future if she were to return to PNG. I find that she does not have a well-founded fear of persecution and is not a refugee as defined in s 5H(1) of the Act.
[6] Chan Yee Kin v MIEA [1989] HCA 62
I have therefore considered the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to PNG, she will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[7] For the same reasons outlined above, I find there to be no real risk of the applicant suffering significant harm as a necessary and foreseeable consequence of her return to PNG. I therefore find that the applicant does not satisfy the complementary protection criterion.
[7] MIAC v SZQRB (2013) 210 FCR 505
The applicant has not raised any other claims to fear harm in PNG and I find that none arise on the accepted facts.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hearing date: 28 October 2024
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.
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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.
…