2402829 (Refugee)

2402829 (Refugee) [2024] AATA 4268 (30 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402829
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Don Smyth
DATE:30 September 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 September 2024 at 7:26pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – domestic violence by former partner – verbal abuse and physical assault – application prepared by another person and some acknowledged as not true – fears for sons’ safety if taken to father’s highland province – vague and inconsistent claims and evidence – no documentation of customary marriage – children’s birth certificates name current partner, not former partner – no recent contact with former partner or family – country information – possibility of obtaining documents in any name – adult child’s protection visa application in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (5), 5L, 36(2)(a), (aa), (2A), 65, 426(3)
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant claims to be a citizen of Papua New Guinea (PNG) and has provided a copy of the bio data page from her PNG passport. I accept that she is a PNG national.
According to information provided in her protection visa application, the applicant was born in Port Moresby in [Year].
The applicant applied for a protection visa on 24 October 2023. On 23 January 2024 a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant appeared before the Tribunal on 3 May 2024 and 17 July 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
In her protection visa application, the applicant gave an address in [Suburb] for the period from [Birth] to August 2023.
The applicant indicated in the application that she had not been employed. With regard to how she supported herself, she referred to selling [things] in the markets to earn cash.
The applicant gave her relationship status as ‘separated’. With respect to whether the applicant had a partner, parents, siblings or children whose details had not been provided in the application, the applicant replied in the negative.
The applicant described her ethnic group as Papua New Guinean and her religion as Christian.
The applicant indicated that she had departed PNG [in] August 2023. With regard to the arrival type, she referred to a church conference.
The applicant made written claims in the application. She stated that she wanted to be protected from the continuous domestic violence from her former partner in PNG. She stated that she had always been assaulted, harmed and tortured. She claimed that she had almost been killed by him. She expressed fear of being harmed or killed. The applicant stated that she did not seek help because he always threatened that he would harm and kill her if she saw the authorities.
The application made reference to the applicant having moved to Madang province for her safety and having tried to hide there. It stated that she had been located by her husband, and assaulted, tortured and harmed for running away and trying to hide. Because of this incident, she was afraid to find another safe place to hide. Her husband would still locate her and might kill her because no one could protect her.
With regard to what she thought would happen if she returned to PNG, the applicant stated that she would be harmed and tortured but this time to the extent of being killed because she had also ‘found another man’ in Australia and her former partner was aware that she was living with another man and having a relationship with him in Australia. The applicant stated that her former partner was very bitter and had been continuously threatening her through friends who relayed the messages to her. The applicant expressed a fear of being assaulted, harmed, tortured and killed by her former partner. She stated that she would not be protected. In this regard, she referred to PNG having laws and organisations that had been recently established. However, she stated that it did not have the resources and safe places for her to hide and get protection. She stated that PNG had not been effective in protecting people like her who were victims of such incidents. She stated that the success rate in protecting victims in PNG had been very low or zero. She stated that there were a lot of killings of women during domestic violence and this was evidenced in the news. She referred to lacking confidence in the authorities, organisations and laws.
The applicant stated that she could not relocate to another province. She again referred to having tried to move for her safety previously and to having been located by her husband and harmed. She stated that PNG was a very small country. The laws and organisations could not protect her and guarantee her safety.
The applicant also submitted a copy of her PNG National Identity Card in support of her application.
On 23 January 2024, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate noted that, on 30 November 2023, the applicant had been sent correspondence inviting her to provide additional information about her claims under s 56 of the Act. As at the date of the decision, the applicant had not provided additional information in relation to her claims. The delegate found that the applicant’s claims were generic and lacking in detail and was not satisfied that the claims relating to the applicant being at risk from her former partner were credible. The delegate was not satisfied that the applicant was a refugee as defined in s 5H(1) of the Act. Nor was the delegate satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there was a real risk that she would suffer significant harm as defined in s 36(2A) of the Act.
Review Application
The applicant submitted a copy of the delegate’s decision to the Tribunal with her review application.
The applicant also submitted to the Tribunal a completed Hearing information form.
The applicant provided the Tribunal with a statutory declaration in support of her claims.
The statutory declaration provided background information in relation to the applicant, including that she was a Christian of the [specified Church]. The applicant stated that her application had been refused because she had missed the opportunity to respond to the section 56 request. She described how the protection visa application had been submitted, indicating that it had been submitted by another person (whom she named and whom I will refer to in the decision as ‘Mr B’) and describing her dealings with this person. She indicated that, because she did not have an email, this person used the applicant’s friend’s email address. When the Department sent her the letter in November 2023, she found out about it late. She did not know what to do or what information was required. She tried to contact the person who had submitted the application but he did not answer calls. She said that she had found out that this person had provided a lot of incorrect information as well as omitting a lot of information from her application.
The applicant described her travel to Australia, indicating that she came on a business stream visitor visa to attend a conference in [City] and travelled with other members of the [Church] who were attending the conference. Her son, [Son 1], travelled to Australia for the same purpose and arrived in Australia 2 days before her. She referred to having used a visa agent in Port Moresby to apply for the visas. The applicant stated that she used [Surname], which was the name of her current partner, as her children’s family name because she had separated from her former husband and did not want to use his name as her children’s name.
The applicant referred to incorrect information provided by the person who submitted her protection visa application, including the following:
·     The application stated that her ex-husband always tortured her. This was incorrect. The applicant’s former husband verbally abused her and would physically assault her when he was angry.
·     It was not true that the applicant did not seek help because her former husband threatened to harm and kill her if she did. The real reason was because her former husband would not let her leave the house. He made sure she was always supervised by one of his relatives, even when he was away. She did not try to leave because she knew her former husband would find out and was afraid he would become angry and assault her. He did not have to threaten her because she was already so afraid.
·     It was not true that the applicant once moved to Madang Province or to Kimbe Province to hide from her husband.
·     It was not true that the applicant was afraid her former husband would kill her because she was in a relationship with another man in Australia. She was not in a relationship with anyone in Australia. She had been in a de facto relationship with her former husband, [Mr C], from 2002 until the end of 2019. They were not married. They met in around 2001 and started living as a couple in 2002. The applicant gave birth to their eldest son, [Son 1], in March 2002. After [Son 1]’s birth, the relationship was regarded as a married relationship. If a man and woman lived together for a period and there was a child from the relationship, the relationship was viewed as a married one. The applicant had three additional children with [Mr C], namely her sons, [Master D] and [Master E], and her daughter, [Miss F]. In December 2019, she ended her relationship with [Mr C] because she found that he had entered a new relationship and had returned to his village in [Town] in Enga Province. She later met her current partner, [Mr G]. The applicant indicated that she did not have any children from this relationship. From 2020 until she came to Australia in September 2023, she lived in her family’s home in the village of [Village 1] in Central Province. She mainly lived in the village with her children and parents but also lived in Port Moresby with [Mr G]. The applicant stated that the address in [Suburb] provided in the protection visa application was the address of her current partner.
·     It was incorrect that the applicant did not have any family members and that she arrived in Australia [in] August 2023. She arrived in Brisbane [in] September 2023.
The applicant referred to information which she said should have been included in the application but was not included because Mr B did not help her like he said he would. She provided details concerning her family. In summary, she indicated that her parents lived in [Village 1] and that she had 7 siblings, 2 [brothers] and 5 [sisters]. Her older sister, [Sister 1], lives with her husband and [children] in [Village 2]. Her older sister, [Sister 2], lives with her husband and [child] in Port Moresby. Her younger sister, [Sister 3], lives in Port Moresby with her [children]. She lives separately from her husband. Her younger sister, [Sister 4], lives with their parents. She is not married and does not have children. The applicant’s younger sister, [Sister 5], is not married and lives with [Sister 3] in Port Moresby. She does not have children. Her [brother], [Brother 1], lives in Adelaide. He is not married and does not have children. Her [brother], [Brother 2], lives with his wife and [children] in their own house in [Village 1]. Her parents live in their village with [Sister 4] and the 3 children the applicant left behind. They are subsistence farmers. The applicant sends them money twice a week.
The applicant described her early life, indicating that she was born in Port Moresby and grew up in [Village 1], about [number] hours from Port Moresby. Her family were originally from this place. The applicant described attending primary school from [Year] to [Year]. She stated that she did not attend high school and that her family were poor. She indicated that her parents did not have jobs but ran a market stall in the village and grew crops. The applicant described her activities and referred to her family as religious. The applicant stated that she moved to Port Moresby in 2001 to get a job. She stated that she wanted to help support her parents and see more of the world.
The applicant set out details of her relationship with her former husband, describing meeting him while working as [an occupation] at a [workplace]. She described the evolution of the relationship and gave the birth dates of their four children. She stated that the reason their relationship was regarded as a married one was because they lived together for a long time and had 4 children together. The applicant stated that she made the decision to end the relationship because she found out that her former husband had entered a relationship with another woman. She stated that she entered the relationship with her current partner sometime in 2020 after she had moved back to her village to live with her parents. Sometimes she stayed with [Mr G] in Port Moresby.
The applicant described abuse from her former husband. She referred to being physically assaulted by him in 2002 when [Son 1] was [age]. She described the incident and indicated that her sister, [Sister 2], witnessed the incident. She stated that, before he drove away, her former husband told one of his uncles to watch them and make sure they did not go to the doctor or tell the police. She described being cared for by her sister. The applicant stated that her former husband continued to abuse her verbally and physically over the next [number] years. She stated that he would travel a lot for work and was often away for most of the week. She described being abused by him when he came home on the weekend. The applicant stated that she lived almost every day in fear and that she never knew when he would explode with anger. She indicated that even little things made him angry and that he would become violent when he was angry. She described being physically assaulted by him.
The applicant described some times when he was better, in particular when she was expecting her second, third and fourth children. She stated that she still loved him and hoped that things had changed and he would not hurt her again. However, each time he would abuse her again after she gave birth and he even abused her in front of her three youngest children.
The applicant stated that she and her former husband lived in his family home with his relatives. His family was well off. His relatives did not hurt her but ignored her suffering. They would not let her leave the house or talk to a doctor or police. The applicant referred to the effect on her mental health and described being isolated and trapped in the house. She expressed the wish that she could have protected her children better.
The applicant described leaving her former husband in December 2019 when she heard from one of his uncles that he was going to see another woman. She stated that her sister, [Sister 2], was visiting when she found out and having her sister there gave her the courage to leave for good. Her sister took her daughter and the applicant left a few hours later. She told one of her former husband’s relatives that she was going to the store. She left with her 2 sons, bringing only their identity documents and a change of clothes. [Son 1] had already moved out and was living with the applicant’s sister, [Sister 3], in Port Moresby.
The applicant described her children’s relationship with their father, stating that they did not see him often because he was away a lot and that he did not really try to have a relationship with them. She stated that he had mentioned a few times that he wanted to show the boys his family’s land when they were older. She described [Son 1]’s relationship with his father, indicating that it was not good. She indicated that her former husband would verbally abuse [Son 1]. She stated that [Son 1] had once tried to defend her when she was being verbally abused by her former husband. His uncles stepped in to stop [Son 1] from getting involved. The applicant stated that there had been a shift in the relationship after that. [Son 1] had spent more time away from the house and moved out in 2018. She said she did not know whether they had spoken since then.
The applicant stated that her former husband tended not to abuse her in front of [Son 1], only their 3 younger children. She did not want [Son 1] to know about the abuse. Even after he tried to defend her, she did not talk to [Son 1] about how he treated her. She did not want to get in the way of his relationship with his father. The applicant stated that, to her knowledge, her former husband had not tried to contact their younger children since she left him.
The applicant described her circumstances after leaving her former husband. She stated that she would travel to Port Moresby once or twice a month to get supplies for her family and visit [Sister 3] and [Son 1]. She was always careful to avoid the area her former husband lived in. However, she said it was hard to shake the knowledge that he or one of his relatives could easily find her. She stated that leaving him and taking the children probably made him angry, and that she believed he would hurt her the next time he saw her.
The applicant described seeing one of her former husband’s uncles at the market in Port Moresby in 2022. She stated that he said that her former husband had remarried and was looking for her and [Son 1]. He wanted to take [Son 1] to his family’s land in the Highlands but had not done this earlier because their relationship was not good. The applicant described becoming anxious, stating that her husband’s family had been involved in a land dispute in Enga for a long time. The applicant said she did not know much about it because she was a woman who only married into the family and was from a coastal area. She stated that, from what she had heard, there were times when nothing happened and times when violence suddenly broke out. She referred to having heard about brutal fighting in the Highlands and stated that she did not want her son to go to the Highlands because she believed he would get caught up in the fighting and get hurt or die. The applicant stated that, to protect her son, she said that she did not know where he was and walked away.
The described receiving a call from one of [Son 1]’s paternal uncles in June 2023, although she said that this uncle did not tell her his name. He wanted to bring [Son 1] to the family land in [Town], Enga Province. He told the applicant that he wanted to take her younger sons when they turned 15 or 16. [Son 1]’s uncle said that he had been instructed to call and speak to the applicant by her former husband. The applicant referred to becoming anxious, saying the fighting in the Highlands had not stopped and expressing concern that her sons would become involved whether they wanted to or not. She stated that either her former husband would force them to join his family’s side or they would become involved by being in the wrong place at the wrong time. The applicant stated that, when she told the uncle that she would not let him take the children, he said he would send the police to take her boys away. When she said she would not let the police take her children either, he threatened that he and her former husband would forcefully take her sons from her.

The applicant stated that, when she heard about the conference in Australia, she decided that the best way to keep the children safe was to leave PNG with [Son 1]. She stated that she believed the three younger ones were safer without her. She stated that her former husband would not try to take her younger sons to the Highlands until they were at least [age]. [Miss F] was a girl so her former husband would not want to show her the Highlands. The applicant stated that her 3 younger children might be safe but she knew her former husband wanted [Son 1] (she said this was clearly communicated to her in June 2023 when her former husband got his brother to call her) and that he would not stop until he found [Son 1]. The only way to keep them both safe was to leave the country. She begged [Son 1] to come with her to Australia so that her former husband could not reach him.
The applicant stated that she feared that if she returned to PNG her life would be in danger. Her former husband would find her. When he discovered that she had returned without [Son 1], he would become angry and harm her. She stated that [Son 1] was in [Prison] and had been there since December 2023. She stated that the phone call from her former husband’s brother was a clear indication that her former husband wanted to take her son to his province to join the tribal fight. The applicant described making herself a barrier between her former husband and her children. She stated that he might know that she had brought [Son 1] to Australia. If not, he would think that she had helped him to hide or get away. Either way, she would be held responsible.
The applicant expressed a fear that she would be seriously harmed or even killed by her former husband or his tribesmen. She stated that the custom around male children was strong and that men were regarded as a prized possession. The applicant stated that the police would not keep her safe. They were corrupt and would only help if they were bribed. Her former husband’s family were rich so he could bribe them. The rest of her family did not have enough money to help her. Her family could not protect her because they did not have enough resources. The applicant described her family’s circumstances and resources. The applicant stated that she could go and live with her current partner, [Mr G], but her partner’s life would also be in danger. The applicant stated that the people from the Highlands made up the majority in Port Moresby and were very aggressive. She referred to payback being huge in culture and custom. The applicant expressed fear for herself, her current partner and other family members.
The applicant attended an initial hearing on 3 May 2024.
Following the initial hearing, the applicant submitted additional documentation, including the following:
·     An email of 17 May 2024 in which she stated that she was unable to provide her children’s birth certificates as the PNG National Identity office was unreliable in issuing certificates. She stated that it took months or years to obtain certificates. She said she had lodged her children’s forms the previous month but they had not been printed to date. She said follow up had been unsuccessful.. She would produce the certificates once she received them from the office.
·     An email of 17 May 2024 from [Ms L]. [Ms L] stated that she was supposed to attend on 3 May for the hearing but could not make it due to her work shift. She stated that the applicant paid Mr B a fee of $450 through the bank but unfortunately was unable to get a receipt from the bank.
·     A copy of a birth certificate for [Son 1], born in [Village 2] on [Date]. [Mr G] is identified as the father of the child.
·     A letter from [Ms P] from [Church]. The letter refers to the applicant’s membership of the congregation and describes matters such as her attendance, her relationship with members of the congregation and her involvement in church activities. It describes the applicant as an asset to the country and attests to her character, honesty and commitment.
By letter of 21 June 2024, the applicant was invited to attend a further hearing on 17 July 2024. The applicant subsequently provided three birth certificates, recording the birth of [Miss F] in Port Moresby on [Date], [Master E] in Port Moresby on [Date] and [Master D] in Port Moresby on [Date]. [Mr G] is identified as the father of each of the three children.
The applicant attended the second hearing on 17 July 2024 and gave further evidence at that hearing. At the hearing, the applicant indicated that she was awaiting additional documentation from her church. I gave her additional time to submit documentation. Following the hearing, she submitted a further letter from [Church], signed by [Pastor Q] and [Ms P]. The letter referred to the applicant’s preparation and application for the position of the Ministry of Elder. It provided information with regard to the nature of the role and the skills required to perform the role. It referred to the applicant’s participation in catering and food service, and described the applicant as an asset for the country and the church.
Although it is not necessary to set this out in full, I have had careful regard to all of the applicant’s oral evidence at the hearing on 3 May 2024 and the hearing on 17 July 2024. I have referred to aspects of this evidence in my consideration, below.
Procedural Matters
By letter of 28 March 2024, the Tribunal invited the applicant to attend a hearing on 3 May 2024. The applicant responded on 3 April 2024 indicating that she would attend the hearing scheduled for 3 May 2024. I note that on 5 April 2024 the Tribunal received an email from the Refugee and Immigration Legal Service (RAILS) indicating that it intended to represent the applicant in the future. The email indicated that RAILS anticipated having increased capacity and resources to represent vulnerable clients like the applicant. Reference was made to an intention to represent the applicant when they received funding. Attached to the email was a letter in which RAILS indicated that, until they received anticipated funding, they did not have the capacity to represent applicants in the review of their protection visa decision. The letter requested that, to ensure vulnerable clients were accorded procedural fairness, consideration be given to postponing the applicant’s hearing. The letter stated that RAILS anticipated having significantly increased capacity to attend hearings by the middle of June 2024. I considered carefully the request for a postponement of the hearing. I note that the postponement request was based on anticipated future funding and an ability to represent applicants dependent on future funding availability and did not provide certainty as to when representation at a hearing might be available for the applicant. In all the circumstances, I considered it appropriate to proceed with the scheduled hearing and declined the request for a postponement of the hearing.
In the conduct and consideration of the review, I have had careful regard to the AAT’s Guidelines on Vulnerable Persons. as well as other relevant guidance such as the Tribunal’s Guidelines on Gender. The applicant was provided with time after the initial hearing to submit additional material. Having regard to the additional material received I considered it appropriate to schedule a further hearing to further explore aspects of the applicant’s claims. The applicant has ultimately had the opportunity to give evidence and present arguments across the course of two hearings. I put the applicant on notice of relevant issues in order to provide her with an appropriate opportunity to address those issues. At her request the applicant was given further time after the second hearing to submit additional material.
I note also that, in her initial Response to hearing invitation form, the applicant nominated [Ms L] as a witness. [Ms L] did not attend the hearing. When asked at the initial hearing whether she wanted me to speak with [Ms L], the applicant said she had worked the night shift and was late to be there. When asked whether [Ms L] was expecting a call from the Tribunal, the applicant replied in the negative. I asked the applicant whether she wanted me to take evidence from [Ms L]. The applicant said it was okay; she was not here so she would say everything. I asked whether [Ms L] was available for us to speak to by telephone. The applicant replied ‘Okay’. I said I could do that if she wanted me to speak with [Ms L]. The applicant said ‘Okay’ again. When asked later in the hearing about what [Ms L] could give evidence about, the applicant referred to the agent they were using not having any communication with her and to using [Ms L]’s email. She indicated that [Ms L] would just talk about how the protection visa application was made. She said they were using a Gmail and all the information was with her. She referred again later in the hearing to using a Gmail. The applicant confirmed that [Ms L] did not know about what happened to her in PNG. Having regard to this and the fact that the applicant had indicated that [Ms L] was not expecting a call from the Tribunal, I did not speak with [Ms L] at the initial hearing. I gave the applicant until 17 May 2024 to provide any additional documents and indicated that she was welcome to provide a statement from [Ms L] if she wished. The applicant subsequently provided a statement from [Ms L] relating to how the application was made. I accept the evidence from [Ms L] and the applicant as to how the application was made with the assistance of Mr B. I accept that the applicant made use of [Ms L]’s email address as claimed. In these circumstances, I did not consider it necessary to take oral evidence from [Ms L], although I had regard to the applicant’s wishes as required by s 426(3) of the Act.
I note that the applicant indicated at the hearing on 17 July 2024 that she had a sore back. I checked with the applicant at the commencement whether she was okay to proceed with the hearing. The applicant said that she had worked night shift and had a sore back. When asked whether she was okay to talk with me, she replied in the affirmative. I indicated to the applicant that she should let me know if she felt that she was not okay to talk with me or she needed a break during the hearing. I am satisfied that the applicant was fit to participate in the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
I note at the outset that the applicant’s claims relate to violence directed at her by her former husband. I am conscious of the difficulties an applicant may face in pursuing claims of this type. In considering the applicant’s claims, I have had regard to the Tribunal’s Guidelines on Gender. I note, for instance, paragraphs 14 and 15 of those Guidelines which refer to difficulties applicants may face in presenting and pursuing gender-related claims. These include difficulties establishing the credibility of an applicant’s claims, as well as difficulty an applicant may have in discussing his or her experiences of persecution because of shame or trauma. I have had regard also to the National Domestic and Family Violence Bench Book (the Bench Book). I note, for instance, that the Bench Book highlights the gendered nature of domestic and family violence. It observes: ‘Further research explains that the gendered framing of domestic and family violence recognises that this form of violence occurs within the wider context of social and economic disadvantage and inequality experienced by women in relation to men, which may mean that for some women multiple factors may intersect so as to heighten their vulnerability.’[1] I am conscious also that, as observed in the Bench Book, where violence has occurred in a relationship, it is common for perpetrators to continue or escalate the violence after separation in an attempt to gain or reassert control over the victim, or to punish the victim for leaving the relationship.[2]
[1] National Domestic and Family Violence Bench Book, section 4.4.1, ‘Vulnerable groups: Women’ (June 2023), available at < National Domestic and Family Violence Bench Book, section 4.2, ‘Factors affecting risk: Separation’ (June 2023), available at < >
Noting that the applicant’s claims relate to traumatic events, I have had regard also to the Tribunal’s Guidelines on Vulnerable Persons. I note that those guidelines refer to various symptoms which may follow the experience of traumatic events, including memory problems. I have had regard to the relevant guidelines both in the conduct of the matter and in my consideration of the evidence.
Background
I have carefully considered all of the evidence provided by the applicant.
I note that the applicant has provided evidence concerning her background in PNG. In summary, she gave evidence at hearing that she was born in Port Moresby and that she grew up in a little place called [Village 1]. She indicated that this was where her family came from, and that she attended school there from [Year] to [Year]. She indicated that [Village 1] is [number] hours by car from Port Moresby. I accept that the applicant was born in Port Moresby but that her family comes from a place called [Village 1], approximately [number] hours by car from Port Moresby. I accept that she grew up in [Village 1] and went to school there from [Year] to [Year]. I accept that she did not finish her education. When asked what she did when she finished school, the applicant referred to staying with her parents back home and helping them. With regard to employment, she indicated that she had worked at [Workplace] in Port Moresby for just a month in 2001 and that this was where she met her husband. She also gave evidence to the effect that she worked in the market selling crops in around 2000. She indicated that she finished school and then started at the market and stayed with her parents around 2000. In 2001 she went to work at [Workplace] and met her husband after one month. She indicated that she was not working after meeting her husband. I accept that the applicant lived with her parents for a period and worked in the market around 2000, that she went to work in [Workplace] in Port Moresby in 2001 and that she worked at [Workplace] for only about a month. I will consider below her evidence about her relationship with her former husband. I accept that she did not do paid work after commencing her relationship with her former husband.
The applicant gave evidence about her family in both her statutory declaration and her oral evidence at the hearing. In summary, she gave evidence at the hearing to the effect that her parents are [named], and that they live in the village. When asked about what they did, she referred to them doing gardening and staying back at home. She indicated that they did not have a phone so it was once in a while that she called them. I accept this evidence about the applicant’s parents. I accept that they live as farmers as indicated in the statutory declaration. With regard to her siblings, the applicant confirmed at the hearing that she had 2 older sisters, [Sister 1] and [Sister 2]. She indicated that [Sister 1] was with her husband at [Village 2], a place 30 minutes’ drive from [Village 1]. She indicated that she was in contact with [Sister 1] once in a while. The applicant indicated that [Sister 2] lived with her husband in Port Moresby. She had 3 younger sisters, [Sister 3], [Sister 4] and [Sister 5]. She indicated that [Sister 3] lived in Port Moresby. She was married but separated from her husband. She indicated that she had contact with [Sister 3] once in a while. She indicated that [Sister 4] lived with her parents back in the village. [Sister 5] lived with [Sister 3] in Port Moresby. [Sister 4] and [Sister 5] were not married. The applicant indicated that she had 2 brothers, [Brother 1] and [Brother 2]. She indicated that [Brother 1] was a seasonal worker in Adelaide. He had been in Adelaide for 2 years. She indicated that [Brother 1] was married and his partner was in Port Moresby. The applicant indicated that [Brother 2] lived back in the village, [Village 1]. She referred to him doing gardening with his wife and indicated that he had 2 children. I accept this evidence about the applicant’s siblings, which is consistent with information provided in her statutory declaration (in particular at paragraphs 20 to 24).
The applicant has claimed that she has four children, namely [Son 1] (born on [Date]), [Master E] (born on [Date]), [Master D] (born on [Date]) and [Miss F] (born on [Date]). I accept that the applicant has these four children as claimed. I note that the applicant claimed in both her written and oral evidence that the father of the children is [Mr C], something I will consider further below. At the time of the initial hearing, the applicant gave evidence to the effect that she did not have birth certificates, saying that they did not provide birth certificates in Port Moresby. She indicated that she was communicating with relevant authorities in PNG for them to send the documents and had been waiting since the previous month. She gave evidence to the effect that it took quite a while to complete this in PNG and that for normal citizens there was a queue and they had to wait. Following further discussion, the applicant indicated that [Son 1] had had to get a passport to come to Australia and that he had had to get an identity document or birth certificate. She indicated that the birth certificate was in Port Moresby and that she could obtain this. As outlined above, she provided a copy of a birth certificate for [Son 1] subsequent to the first hearing. She has subsequently also provided birth certificates for the other three children, all of which name her as the mother. I accept that the applicant has four children and that their birth dates are as set out above.

At the time of the first hearing, the applicant indicated that the children were with her parents back in the village (she later confirmed that they were living in [Village 1]), although she also indicated that her eldest child, [Son 1], was with her. She gave evidence to the effect that he had come to Australia on a Tourist visa and that he had been in prison since December 2023. I accept that the applicant’s son, [Son 1], came to Australia shortly before the applicant as she indicated in her evidence at the hearing and that he is now in prison in Australia. I accept that the applicant’s three other children are with her parents in their village, [Village 1]. The applicant indicated that she came to Australia on a Tourist visa in September 2023, that the purpose of travel was for a church conference, and that both she and [Son 1] went to the conference. I am willing to accept that this is the case.
I have considered the applicant’s explanation about how the protection visa application was made. The applicant gave information about this matter in the statutory declaration, in particular at paragraphs 4 to 7. I have had regard to this. I discussed the gist of this with the applicant at hearing. The applicant confirmed at the hearing that she found out late about the Department’s letter of November 2023 asking her to provide information because the email went to [Ms L]. At the hearing, the applicant also gave evidence to the effect that the agent did not let them know anything about what was in the application but that she saw it when it was refused. After the hearing, the applicant provided an email from [Ms L], which stated that the applicant paid Mr B a fee of $450 through the bank. I accept the applicant’s evidence about the manner in which the protection visa application was made. I accept that a man (to whom I have referred as Mr B) made the application, that he said he would take care of everything if she paid a fee and that she paid him to help with her application and her son’s application. I accept that she only became aware of what was in the application after the refusal. I accept that she used [Ms L]’s email address, that she was late in finding out about the Department’s November 2023 letter, that she did not know what was required and that the person who prepared the application did not answer her calls. I accept that this explains why information may have been omitted from the protection visa application and also why the applicant did not respond to the request for further information pursuant to s 56 of the Act. In reaching these conclusions, I have had regard also to the National Domestic and Family Violence Bench Book which refers to a range of factors that may impact on disclosure, including violence not being seen as sufficiently serious to warrant disclosure, feelings of shame and humiliation, and lack of awareness of relevant laws and legal rights.[3] In all the circumstances, I have not drawn any adverse inference from the applicant’s failure to respond to the s 56 letter.
History of Past Relationship
[3] National Domestic and Family Violence Bench Book, section 5.1, ‘Impact on consent and disclosure’ (June 2023), available at < >
I have considered the applicant’s evidence about her relationship with her former husband, [Mr C]. The applicant has given evidence about this in both her statutory declaration and her oral evidence at hearing.
In summary, the applicant’s evidence at the hearing was to the effect that she met her former husband in Port Moresby while working at the [Workplace] and started living with him in 2002 or at the end of 2001. She gave evidence to the effect that they did not have a formal marriage but stated that in their custom he came and took her and she lived with him. She indicated that people regarded them as being married. The applicant gave evidence to the effect that [Mr C] was from [Town] in Enga Province in the Highlands. She indicated when asked that she did not know which tribe he belonged to. When asked whether it was the case that he did not tell her that, she said he was from [Town] in [location]. She said that was the tribe.
The applicant gave evidence that she had lived with her former husband’s family in [Suburb]. When asked whether the address was as given in the protection visa application, she said that was for her current partner and said [Suburb] was a big area. She confirmed that she had been living with her former husband’s family which she said had a lot of money. The applicant described [Mr C]’s work, indicating that he managed a company in Port Moresby. She said the work was inside the city so he used to drive there, but went on to say that he used to travel a lot making business trips. She indicated that his main job was in the city but he had to do business travel to go to other provinces. She referred to him going to a little front office around the area. She indicated that the business involved working with sportspeople and that they went out to look after sportspeople around other areas. When asked how many people were living in the house with her and her former husband, she referred initially to herself, her husband, the little children and one of his aunts. She referred also to boys staying there and to relatives. She referred to some being like cousins and some like security looking after the place. She said there was his family so they were just looking after the place. The applicant indicated that it was a large house.
The applicant gave evidence that she had lived with [Mr C] from around 2002 to 2019. When asked about what the relationship was like, the applicant said that when they were married it was okay. When he started drinking it was not good. She said he started fighting with her. When asked about when that started, she described him starting a big fight when she was [pregnant] with [Son 1], in around [Year]. She gave evidence to the effect that her former husband was drunk, that he physically harmed her (she referred to him breaking her head with a piece of iron) and that her sister, [Sister 2], helped her because she was bleeding. She gave evidence to the effect that she did not get any medical treatment. She said her husband left after he did that. She referred to him letting an uncle know that she should not go out to report it or to get medical treatment and said she just stayed. She gave evidence to the effect that her former husband was sometimes okay and sometimes he kept fighting her when he was not in good times. She gave evidence to the effect that he would physically harm her and give bruises on her skin, and that this kept happening right up until 2019. When asked how often he was fighting her or physically harming her, she said when he was not okay it was around 3 times a month. She also referred to him using words that were not good towards her.
With regard to whether she ever complained to the police, the applicant referred to her former husband talking to his uncle about her not going out of the house and not going out of the property to hospital. She said the police knew him so he used to bribe the police as well so she could not go there. She indicated that he would not let her go out of the house and that she stayed at home. When asked about her mental health, she referred to losing her memory at the time when he broke her head. When asked whether she had had any treatment for her mental health, she replied in the negative. She said she did not go out of the house. She just stayed. The uncles and the boys just watched her so she just stayed at home.
The applicant gave evidence to the effect that her former husband was not harming her children. She said he was just using words that were not good towards them. She indicated that [Son 1] had moved out of the house and described him having an argument with her former husband. She indicated that she could not remember what year [Son 1] moved out. She indicated that she did not try to move somewhere else to get away from her husband, saying that she could not go to another place because her children were there.
At the first hearing, the applicant also gave evidence about the circumstances in which she left her former husband in 2019. In summary, she described hearing from his uncle that he was going for a business trip to his place and that he went to find a new partner for himself there. She described her sister, [Sister 2], coming to visit. She indicated that [Sister 2] took the applicant’s daughter and the applicant went after her. She indicated that she told them she was going to the shops and left. She took her two boys and some documents and belongings. When asked where she went, she gave evidence to the effect that she went to the bus stop and that she got a bus and went straight back to her village. The applicant confirmed that her former husband had returned to his village in [Town], saying that was the business trip he said he was going to and that he went back to his place. When asked whether he was still in [Town], she replied in the affirmative, saying that he said he was going to [Town]. She gave evidence that she had not had any contact from her former husband since she left him. The applicant confirmed that she had kept staying with her family in the village after that. She also referred to going to Port Moresby just to buy food and see her younger sister. She claimed that she was afraid to go back to Port Moresby. When asked why she travelled to Port Moresby if her husband had harmed her there and she was afraid of going back to Port Moresby, she said she went to a different place just to buy food; she did not go to their place. She gave evidence to the effect that she would go there around 3 times a month just to buy food and come back. She gave evidence that rice and other things were expensive in the village and that she would go to Port Moresby to buy goods. She indicated that [Son 1] lived with her younger sister, [Sister 3], in [Suburb]. She indicated that she would visit him but not go to [Suburb]. She indicated that she would ask him to go to another place and meet him there.
With regard to her current partner, [Mr G], the applicant described meeting him in church in Port Moresby. When asked about why she was going to church in Port Moresby, the applicant said when she was with her ex-husband she used to go to church. She used to go to the [Church]. I asked whether she was worried that her former husband or his family would find her there. The applicant replied in the negative. She said she was hiding and she saw him. I raised with the applicant that I was not sure I understood how she was hiding if she went to church. She said that she went to church and she used to see him there. I asked whether she was going to church in Port Moresby in 2020. She said that when she was with her ex-husband she used to go to church on Sunday. And then in around 2020 she met her second partner. She confirmed that this was after she left her former husband in 2019. I asked whether, if she had left her former husband in 2019, she was still going to church in Port Moresby in 2020. The applicant said in around 2020 they went to a church conference, which she indicated was in Port Moresby, and that that was where she met him. The applicant gave evidence about [Mr G]’s work, indicating that he was working for the church driving a car, that he was helping with the administration and that he was the accountant in the church. When asked about whether she lived with [Mr G], she said once in a while she just came for the weekend and she went back to her place. The applicant confirmed that [Mr G] lived at an address in [Suburb]. The applicant said she used to be afraid. She would just go for a short time and usually be in a hurry and go back to her place. She did not usually stay in Port Moresby for a long time. The applicant indicated that [Mr G] was still in PNG, that she had contact with him once in a while, that she was still in a relationship with him and that she had never had a relationship with anyone in Australia.
I have considered the applicant’s claims and evidence about her past relationship with [Mr C]. I note that there is no documentary evidence, such as a marriage certificate, with regard to her relationship with [Mr C]. In this regard, I note that the applicant claimed to have been in a customary marriage with [Mr C]. Independent information indicates that the law in PNG has never required the registration of customary marriages.[4] I consider it plausible that the applicant could have been in a long-term customary marriage as claimed without having obtained any formal documentation to evidence the union.
[4] J. Luluaki, ‘Registration and Proof of Customary Marriage in Papua New Guinea’, Lawasia Journal (2017)
As discussed with the applicant at hearing, she has produced birth certificates in relation to all four of her children. Each of the four birth certificates gives the child’s family name as ‘[Surname]’ and names the father as ‘[Mr G]’. On the face of it, this might appear to be at odds with the applicant’s claim that [Mr C] was the father of each of the children and might appear to cast some doubt on her claims about her relationship with [Mr C]. The applicant has given evidence that [Mr G] is the name of her current partner. At the initial hearing I discussed with the applicant why [Son 1] went by the surname ‘[Surname]’. Following receipt of the birth certificates I invited the applicant to a further hearing at which I discussed with her the information on those birth certificates. With regard to how the name ‘[Surname]’ came to be on [Son 1]’s passport, the applicant said that she had changed the name to the new partner. She indicated that she did not have any records for the changing of the name. When asked about the birth certificates, the applicant gave evidence to the effect that she changed the birth certificate to the current partner because the father of the children had left. She said that mostly in PNG the mother changed the child’s surname to the current partner because there were a lot of issues before that. I note that DFAT has observed that it is reportedly very easy to obtain birth certificates in any name in PNG.[5] It was of some concern that the birth certificates recorded as the father of the children a man who the applicant claims is not the father of the children but her current partner. However, the information from DFAT suggests that it is easy to obtain a birth certificate in any name. In these circumstances, I am willing to accept that the applicant simply chose to request birth certificates that named her current partner as the father because she considered this desirable and that the birth certificates were issued in accordance with her wishes.
[5] DFAT, Country Information Report Papua New Guinea (6 September 2022) at p.25
The applicant has given a broadly consistent account of her relationship with [Mr C] up until the time in December 2019 when she has said that she left him. I note that DFAT’s Country Information Report of September 2022 stated that violence against women and girls in PNG was very common and noted that such violence was sometimes referred to as gender-based violence or family and sexual violence. It referred to a high risk of societal discrimination and assessed that women faced a high risk of gender-based violence.[6] I raised the gist of this information with the applicant at the hearing. I consider that the applicant’s description of the history of violence experienced at the hands of her former husband is consistent with this information. In all the circumstances, I am willing to accept that the applicant was in a relationship with [Mr C] from 2002 to 2019. I accept that she lived with him in the family’s house as claimed, that there were members of his family and others also living there, and that his family was relatively wealthy. I accept that she was subjected to violence by her former husband during the course of the relationship and that, as described by the applicant at the hearing, this included being struck on the head by him and being assaulted particularly when he was drunk. I accept that he was also verbally abusive towards her during the course of the relationship. I accept that she did not complain to the police or seek medical treatment because of the level of control exerted by her former husband and his family. Based on her evidence, I find that her former husband was not physically abusive to her children, although he engaged in some verbal abuse. I accept that he had an argument with [Son 1] and that [Son 1] moved out and subsequently lived with the applicant’s sister in Port Moresby. I accept that the applicant left her former husband in 2019 after hearing that he had gone to [Town] to find a new partner. I accept that she then went to her family’s village of [Village 1] in Central Province and that her children (with the exception of [Son 1]) are continuing to live there with her family. I accept that the applicant is now in a relationship with [Mr G] and that she met him at a church conference in Port Moresby in 2020. I will discuss further below the evidence to the effect that she spent time in Port Moresby after separating from her former husband.
[6] Ibid. at p.15
At both hearings I discussed with the applicant [Son 1]’s situation. The applicant has given evidence to the effect that [Son 1] is in [prison] and that he has been in prison since December 2023. She gave evidence to the effect that [Son 1] had applied for protection in Australia, although she appeared to indicate that a decision had not been made in relation to his application. Although the applicant has not provided documentary evidence in relation to these matters, I accept that [Son 1] is in prison in Australia and that he has applied to remain in Australia. In these circumstances, I accept that, if the applicant had to return to PNG, she would do so without [Son 1].
Claims about events / circumstances after relationship with former husband ended
I note that, in her statutory declaration, the applicant referred to seeing one of her former husband’s uncles in the market in Port Moresby in the middle of 2022. She claimed that she was told by this person that her former husband had remarried and was looking for her and her son, [Son 1], and that he wanted to take [Son 1] to the family’s lands in the Highlands. She also claimed to have received a call in June 2023 from one of [Son 1]’s paternal uncles who told her that he wanted to bring [Son 1] to the family land in the Highlands and that he also wanted to take her younger sons when they turned 15 or 16. She claimed that this uncle said that he had been instructed to call her by her former husband, [Mr C]. In her statutory declaration (particularly at paragraphs 52 to 71) the applicant addressed events after leaving her former husband, her decision to leave PNG, and why she cannot return to PNG. I have considered carefully all of the evidence in the statutory declaration.
At hearing, the applicant also gave evidence about having had contact with relatives of her former husband after the time when her relationship with her former husband ended in 2019. For instance, when asked at the initial hearing about what she was afraid would happen if she went back, the applicant referred to having [Son 1] here. She said that there would be a big fight if she went back. She referred to a tribal fight happening at his place. When asked how she knew there was a tribal fight happening at his place, the applicant referred to meeting one of his uncles in Port Moresby. She said they let her know that they wanted to come and take her son. That was why she took him here. The applicant said it was around June that she met one of his uncles in Port Moresby. She described going to buy food and said she saw a guy and they had a talk. He told her that her ex-husband was working hard to find his son. The applicant indicated that it was in June 2023 and confirmed that she saw one of his uncles in June 2023. When I noted that this was about 3 or 4 months before she left for Australia, the applicant confirmed this. She gave evidence to the effect that, when she went to buy food in Port Moresby, they bumped into each other and had a talk there. She confirmed that she was sure that that was in June 2023. When asked what the uncle said to her, she said that the uncle told her that [Son 1]’s father was looking for him. He wanted to find him and take him back to their place and show him the land they had. That was what the uncle was telling her, that his father was looking for him so it was good for him to let [Son 1] go so he could show him the land that they had. The applicant gave evidence to the effect that she told the uncle that, because there had been a land dispute and all that going on in that place, she did not want her son going there. She said she knew if they had the fight they would kill him so she did not like it. When asked who they were fighting, she referred to the tribal fight that was happening every now and then in [Town]. The applicant indicated, when asked, that she had not heard from her former husband’s family again after that. She said it was just from the uncle and claimed that he threatened her, saying they would take the police and come and find them. When asked whether she had ever received any phone calls or threats on the phone, the applicant replied in the negative. She said they just called [Son 1]. She confirmed that she did not receive a call from one of [Son 1]’s uncles.

As discussed with the applicant at the hearing, she had said in her statutory declaration that it was in the middle of 2022 that she saw one of her ex-husband’s uncles at the market. When the evidence in the statutory declaration was raised with her at the initial hearing, the applicant said it was June 2022. When asked whether there was a reason she had given evidence that it happened in June 2023, the applicant said she just did not remember that so she just said it like that. She said she missed that. She confirmed that it was June 2022. When asked about a phone call after June 2022, she went on to give evidence that they called [Son 1]. She said that they just called [Son 1]. She said they called him and told him his father wanted to speak to him. He told them he was not with his mother. She referred to having already made [Son 1] aware that the father wanted to take him back. She gave evidence that it was his uncle who called. The applicant confirmed that it was just [Son 1] who spoke with this uncle and that she did not speak with him. When I raised with her that she had said in her statutory declaration that she received a call from one of [Son 1]’s paternal uncles in June 2023, the applicant said she could only remember it was only [Son 1]. They wanted to take him there and show him the land.
I discussed with the applicant at the initial hearing the apparent inconsistency between her evidence at the hearing and evidence in the statutory declaration. In response, the applicant said it had been a long time so what was there was mostly okay. She said she had been having a problem with her memory; maybe that was why sometimes she said something that was not right. When asked whether she had been receiving any medical treatment for her memory or anything else, the applicant replied in the negative. The applicant went on to say that she did not want to go back to PNG. She referred to her son being here, and said if she went back they would find her and fight her again. They would kill her because her son was here. She referred to having 2 sons there, and said when they grew up to [age range] they would find them. Because she was here with her son if she went back there they would find her and they would fight her. She described the Highlands as different and as not having respect for anyone. She indicated, when asked, that her former husband or members of his family had not tried to harm her children or family members in [Village 1]. She indicated that she did not think [Son 1] would go back to PNG, saying that she did not want him to go back.
The applicant gave evidence that she did not want to go back to PNG. She said, if she were to go back to her place or Port Moresby, they would come and find her. I raised with the applicant that I might wonder whether [Village 1] would be the place she would be likely to go and whether she would be safe from harm in [Village 1]. The applicant replied in the negative. She said that they would come if she went back. They would come and find them because she had her children. She said they would use the police. They would bribe the police, because they had a lot of money, for the police to come and try and find them. I asked why, if he was able to do that, he did not do that before she and [Son 1] left PNG. The applicant said that [Son 1] was at the different place with her sister and she was back in the village. She said if she went back now and she went by herself they would come and find her and they might do something. I raised with the applicant that it was over 3 years between when she left her husband in December 2019 and when she came to Australia in September 2023. I asked why her husband or his family did not harm her in that time if they were interested in her and [Son 1], and they wanted to do her harm. The applicant said they did not harm them because [Son 1] was with his aunt, [Sister 3]. I asked why they did not go and find him or harm him in Port Moresby if they were interested in him or interested in the applicant. The applicant said he had not gone yet so they did not come and find them at the place where they were. The applicant went on to say that she had told her sister that she did not want them to come and take [Son 1].
I discussed with the applicant that the real chance of persecution must relate to all areas and noted that her former husband lived in [Town] Province. The applicant referred to the Highlands people fighting and cutting people. She said she did not want her son to go back there. With regard to complementary protection, I discussed with the applicant the question of relocation. With regard to [Village 1], the applicant gave evidence to the effect that she did not want to go back there because those people would not give up. They would still come and look for them. She said they would still come and look for her so she did not want to go back there. With regard to Port Moresby, the applicant said her partner was from Papua so if they found her there with him, he was going to be in trouble as well. They were going to take him as well. When asked about why [Son 1] had kept living in Port Moresby, she said he was with her sister and was helping with looking after the children. She referred to them being in [Suburb]. The applicant went on to say that in the Highlands the oldest son was the next of kin of the father so what she had written down was true. She said she was safe here in Australia. She felt safe and going back like 5 o’clock she had to be in the house, not going around.
I discussed with the applicant whether she thought the police or authorities would protect her if she needed protection. The applicant referred to the police being corrupt and taking bribes, and to there being no law so she did not think they would protect her. When I put to the applicant the gist of independent information about relocation,[7] the applicant said that Port Moresby was not a good place any more. She said all the prices had gone up. It was not her province. She could not go and live there. Port Moresby was not a good place to move into anymore. The applicant stated that what she said was true.
[7] DFAT, Country Information Report Papua New Guinea (6 September 2022) at paras 5.15 – 5.16
At the second hearing, I sought to confirm with the applicant that she had not had any further contact with her former husband since she left him. The applicant confirmed that this was the case. The applicant also indicated, when asked, that she had not seen her former husband at all since 2019. I indicated to the applicant that I had wanted to clarify that because I thought she might have said at one point that she had seen him at church but from what she was saying she had not seen him at all since 2019. The applicant then went on to refer to seeing him from a distance but not so much in contact. I raised with the applicant that I thought she had said she had not seen him since 2019. The applicant said she had seen him from a distance but had not really had a conversation. When asked how many times she had seen him, she said just once in a while because he was working. I raised with the applicant that I thought she had told me that he had gone back to [Town] and that he was still in [Town]. She said that he lived in [Town]. She said he went to work and moved back and forth. She indicated that she was saying he went to Port Moresby sometimes for work. I again raised with her that she had initially seemed to say that she had not seen him since 2019.
At the second hearing, I also discussed with the applicant the gist of information in her statutory declaration with respect to her having received a telephone call from one of [Son 1]’s uncles and this person having told her, for instance, that he wanted to take her younger sons and having made threats. I raised with her that she had seemed to indicate at the first hearing that they called [Son 1], not her, and that this call did not occur. When this was raised with her, the applicant gave evidence to the effect that he called her and threatened her first; then there was the call to [Son 1]. When I raised with her the gist of her evidence at the first hearing, she said he rang her, then he rang [Son 1] later (she indicated later in the hearing that she received a phone call in June 2023). When I raised with the applicant that I might have doubt that they called her as she was saying, she went on to make submissions to the effect that she was forgetful at times but when we were talking things came back. When asked whether there was anything else that made her think that her husband would be interested in taking [Master E] and [Master D], the applicant said the children were living with her parents so she was a bit afraid of that. I raised with the applicant also that she had referred in her statutory declaration to seeing one of her ex-husband’s uncles at the market in Port Moresby in the middle of 2022. I noted that she did not mention in the statutory declaration that he threatened her by saying they would take the police and come and find them. The applicant again referred to being forgetful at times. When asked later in the hearing about apparent inconsistencies in her evidence about the contact she said she had received from an uncle of her former husband or from other family members, the applicant said that sometimes she was very forgetful and then she could think about it later.
I discussed with the applicant at the second hearing the gist of information in relation to tribal fighting in PNG (discussed further below). I discussed with her that I might not be sure how she knew that her former husband wanted to take [Son 1] or her other sons for tribal fighting. The applicant said right now they wanted [Son 1] to go there to be involved in the fight to protect the land. When asked how she knew they wanted [Son 1] to be involved in the tribal fighting, the applicant said that she did not want him to go and be involved in the tribal fighting; that is why she brought him with her. In her evidence at the second hearing, the applicant indicated that her former husband did not know that she had brought [Son 1] to Australia. I raised with the applicant that I was not sure how he would know because from what she had told me she did not have any contact with her former husband before she came to Australia and he did not find [Son 1] or meet him. The applicant confirmed this. When asked why it would be a problem if she went back without [Son 1], the applicant said her two other children were there and referred to being afraid that the relatives would look for her. She went on to say that Papuan was different to New Guinea. She referred to [Town] being from New Guinea but from the Highlands, and to being fearful of them. I raised with the applicant that it might seem from what she had said that her former husband did not find [Son 1] before but did not come and harm her. The applicant said she struggled to find ways and means to bring [Son 1] here. This was the opportunity so she took it.
I explained to the applicant that I would need to consider whether there was a real chance of persecution or a real risk of significant harm, for instance from her former husband or his tribe. I raised with her, for instance, that it might seem that she had been able to go and spend some time in Port Moresby and [Village 1] after she left her husband and she did not have any contact with him, and I might wonder about whether she had suffered any serious or significant harm in that time after she left him in December 2019. The applicant said that the significant harm was their ways because they were from the Highlands. The applicant said that being from the Highlands that was their way. They would pursue even though the marriage was over. I asked the applicant why, even if they had some interest in [Son 1], that would cause them to harm her. The applicant said with the way of thinking coming from [Town] because she had brought [Son 1] here and left the other two there he would be looking for them.
I also discussed with the applicant at the second hearing that, from what she had told me at the initial hearing, she had lived in [Village 1] from 2020 until she came to Australia and had family there. I raised with her that she appeared to tell me that her former husband had not tried to harm her children or other family members in [Village 1]. The applicant said when she stayed in [Village 1] it was kind of more verbal that ‘I am coming for you’, not so much meeting each other. In his culture his way of thinking was he would look for them. She said he would look for them. When asked why she could not go to [Village 1] and be safe there, the applicant said the other parts of PNG where he lived would inform him that she was living there and it was still not safe. I raised with the applicant that she had said in her statutory declaration that she spent half the time with [Mr G] in Port Moresby and that, from what she had said, [Mr G] lived in [Suburb] which was the same suburb in Port Moresby where she lived with her former husband before. I noted that she had also indicated that she had met [Son 1] in Port Moresby or seen him there. The applicant said yes, he was staying with his other aunt. I raised with the applicant that I might wonder whether, even if she spent time in Port Moresby or went back there, she would face a real chance of serious or significant harm from her former husband or his tribe. The applicant said she did not want to go back. She felt safe here and would like to bring the children here. When asked whether she was saying it was because of the issue to do with her former husband and his tribe that she said she would not be safe in PNG, the applicant confirmed this. She reiterated later in the hearing that PNG was not safe and that she would like to bring her family here. She said the little job she did here supported her family.
I have carefully considered all of the evidence, both written and oral, with regard to the claimed contact from members of the applicant’s former husband’s family after the conclusion of the relationship with her former husband, and the claimed interest in the applicant and her sons.
There are a number of inconsistencies in the evidence in this regard. For instance, while the applicant claimed in her statutory declaration that she had seen one of her ex-husband’s uncles at the market in the middle of 2022, in her initial oral evidence about this she claimed that this event happened in June 2023 and confirmed that she was sure that it was in June 2023. When the evidence in the statutory declaration was raised with her, the applicant said it was in June 2022. While the statutory declaration described an event in which she received a call from one of [Son 1]’s paternal uncles in June 2023, in her oral evidence at the first hearing she indicated that they called [Son 1]. She confirmed that it was just [Son 1] who spoke with the uncle. When it was raised with her that she had said in her statutory declaration that she received a call from one of [Son 1]’s paternal uncles in June 2023, she said she could only remember it was [Son 1]. When asked whether she had ever received any phone calls or threats on the phone, the applicant replied in the negative. She said they just called [Son 1]. She confirmed that she did not receive a call from one of [Son 1]’s uncles. However, at the second hearing, she gave evidence to the effect that they called her (she said in June 2023) and then they called [Son 1].
On one view, the inconsistency in the evidence might give rise to concern as to whether events involving contact with members of the former husband’s family following the conclusion of the relationship occurred. I am conscious that the applicant’s claims relate to gender-based violence and events that were traumatic in nature. Having regard to the relevant guidelines discussed above, I have adopted a cautious approach to the evidence. I note, for instance, that experience of traumatic events might affect a person’s ability to provide a chronologically intact account.[8] I have had regard to the difficulties applicants may face in presenting and pursuing gender-related claims. In all the circumstances, I am willing to accept that an event occurred in June 2022, rather than June 2023, in which the applicant saw one of her husband’s uncles in the market in Port Moresby. I am willing to accept that, as claimed by the applicant at the hearing, this uncle told her that [Son 1]’s father was looking for him and wanted to take him back to their place and show him the land. I accept that she told the uncle that she did not want her son going there. Although this was not referred to in the statutory declaration, I am willing to accept that, as claimed at the hearing, this uncle may have said that they would take the police and come and find them.
[8] Administrative Appeals Tribunal, Guidelines on Vulnerable Persons at p.20
Adopting a beneficial approach to the evidence, I would be willing to accept that, while the statutory declaration referred to a paternal uncle calling the applicant in June 2023, an uncle in fact called [Son 1] and spoke with him. However, the applicant’s evidence at the initial hearing was that they just called [Son 1] and that she did not receive a call from one of [Son 1]’s uncles. This is difficult to reconcile with her evidence at the second hearing to the effect that she received a call first and that they then called [Son 1]. I am conscious that the applicant described being violently assaulted and referred to having memory difficulties. Notwithstanding that there is no medical evidence to indicate that the applicant was unfit to participate in a hearing, I am conscious that experience of traumatic events may affect, for instance, the ability to provide certain detail or to present a chronologically intact account. I am conscious also that the applicant was giving evidence of gender-based violence. Nevertheless, I do not accept that there is any satisfactory explanation as to why, if she had received a telephone call from one of [Son 1]’s uncles in June 2023, she would have indicated at the initial hearing that she did not receive such a call and that it was only [Son 1] that they called. In all the circumstances, I do not accept that the applicant received a call from one of [Son 1]’s paternal uncles. I do not accept that such a person called her. I do not accept that she received a call in June 2023 as indicated in the statutory declaration (and as claimed at the second hearing) and that she was told, for instance, that her former husband wanted to bring [Son 1] to the family land and wanted to take her younger sons when they turned [age range], or that she was told at that time that he would send the police to take the boys away or was threatened. Giving the applicant the benefit of the doubt, I am willing to accept that [Son 1] received a call in June 2023 as claimed at the hearing, that they told him that his father wanted to talk to him and that [Son 1] said that he was not with his mother. I am willing to accept that the caller may have indicated that they wanted to take [Son 1] and show him the land.
While the statutory declaration did not refer to the applicant having seen her former husband after the separation in 2019, when discussing her attendance at church at the initial hearing she appeared to refer to being in hiding and seeing him. Noting that her evidence in this regard seemed somewhat unclear, I sought to clarify with the applicant at the second hearing whether she had seen her former husband since 2019. She indicated that she had not. It was only when I raised with her that she might have said at one point that she had seen him at church that she gave evidence to the effect that she had in fact seen him but from a distance. Again, I have had regard to the applicant’s claimed experience of traumatic events and to relevant guidelines in this regard. However, if the applicant had seen her former husband at any point since the separation in 2019 I consider that this would have been a significant matter even if she did not have direct contact with him. When asked about this directly at the second hearing, she indicated that she had not. Having carefully considered all the evidence, I do not accept that the applicant has seen her former husband since the time she left his family’s home in December 2019. The applicant has given evidence that she has not had any contact with him since then. I find that the applicant has not had any contact with her former husband since December 2019 or seen him since that time.

104. 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).
Complementary Protection Criterion

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).

106. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
107. I accept that the applicant suffered abuse from her former husband in the past and that this was of such a nature as to constitute significant harm. I am conscious of the nature of the past harm and trauma experienced by the applicant, and have given very careful consideration to all of the available evidence. For reasons set out above, I do not accept on the evidence before me that the applicant has had any contact from her former husband or seen him since the time when she left him in December 2019. Other than the one occasion when she saw an uncle in the market in June 2022, I find that she has had no contact with any member of her husband’s family. Even accepting that this uncle referred to taking the police to come and find them, I do not accept that they in fact did so in the period before the applicant left PNG in September 2023. I do not accept that the applicant in any way suffered significant harm from her former husband or any member of his family or tribe between December 2019 and when she departed PNG in September 2023. I accept that relatives of her former husband may have told the applicant (in June 2022) and her son (in June 2023) that her former husband wished to show [Son 1] the land. However, I do not accept that this caused the applicant to suffer any significant harm. I do not accept that her former husband sought to harm her in that time because she had left him or because he was looking for [Son 1] or for any other reason. I have found that the applicant’s former husband is not aware that [Son 1] is in Australia. While I accept that [Son 1] is in Australia and would not return with the applicant, as discussed above, I do not accept that this would cause her former husband or his family to think that she is hiding [Son 1] or to become angry with her. As discussed above, the evidence suggests that they did not locate [Son 1] in person before when the applicant and her son were in PNG. I do not accept that this led to the applicant suffering any serious harm or significant harm.
108. As set out above, I have found that it is likely that the applicant would return to her family’s village of [Village 1]. In all the circumstances, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to PNG, there is a real risk that the applicant will suffer significant harm at the hands of her former husband or his family or tribe. I do not accept that there are substantial grounds for believing that there is a real risk that she will suffer significant harm from such people directly or by means of them harming other members of her family. In making these findings, I have had regard to the applicant’s evidence about people from Enga or [Town] or the Highlands and the way they behave and think. I accept that there is significant violence in the Highlands, including tribal fighting. I accept also that gender-based violence is a problem in PNG. However, although I accept that the applicant suffered harm in the context of her relationship with her former husband, I do not accept that she in any way suffered serious harm or significant harm in the period between when she left him in December 2019 and when she departed PNG in September 2023. As discussed above, I consider that she spent time in Port Moresby for shopping and to visit her current partner without suffering serious harm or significant harm. Even if she were to travel to Port Moresby as she did in the past, I do not accept that there are substantial grounds for believing that there is a real risk that she will suffer significant harm at the hands of her former husband or his tribe or family. As noted above, the applicant has referred to being Papuan as different to New Guinea. She has referred to her partner being from Papua and to [Town] being from New Guinea and from the Highlands. However, even if this is the case, I do not accept in all the circumstances that this gives rise to substantial grounds for believing that there is a real risk that she will suffer significant harm from her former husband or his family or tribe.
109. As noted above, the applicant confirmed at the hearing that it was because of the issue to do with her former husband and his tribe that she said she would not be safe in PNG. For reasons set out above, I do not accept that there are substantial grounds for believing that there is a real risk that she will suffer significant harm at the hands of her former husband or his family or tribe.
110. I have carefully considered the applicant’s situation as a woman in PNG and have had regard to the relevant DFAT information in this regard. In terms of harm the applicant claimed to have suffered in the past, as noted above this was focused on her former husband and his family and tribe. I do not accept that there are substantial grounds for believing that there is a real risk she will suffer significant harm at the hands of her former husband or his family or tribe. After she left her former husband in December 2019, she went to live in [Village 1] where she has the support of her family and also spent time in Port Moresby where she has the support of her current partner. I find that she was able to live and stay in those places without suffering any form of significant harm as a woman. In all the circumstances, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to PNG, there is a real risk that she will suffer significant harm as a woman in PNG. I do not accept that there are substantial grounds for believing that there is a real risk she will suffer significant harm if she returns to [Village 1] or even if she spends time in Port Moresby as she has done in the past.
111. I have had regard to the applicant’s claims about her family not having sufficient resources and struggling to provide for themselves. I have had regard to her evidence to the effect that things are expensive, that wages are low, and that her parents struggle in the village where they do gardening. I accept that the applicant lived in [Village 1] with her family, that they engage in gardening or farming, that they have limited resources and that her three younger children are all living there also. I am willing to accept that wages are low and prices are high. However, I do not accept that such matters, or their impact on the applicant, involve the intentional infliction of pain or suffering such as to constitute cruel or inhuman treatment or punishment, or torture. Nor do I accept that they involve an act or omission that is intended to cause extreme humiliation, such as to constitute degrading treatment or punishment. The evidence does not support a conclusion that there are substantial grounds for believing that there is a real risk that the applicant will be subjected to the death penalty or be arbitrarily deprived of life. I do not accept that such matters give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A).
112. I have carefully considered all of the applicant’s claims and circumstances, both individually and cumulatively. However, even considering cumulatively all of the applicant’s circumstances, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to PNG, there is a real risk that she will suffer significant harm.
113. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
114. I note that the applicant has provided letters from members of the [Church], and in particular [Pastor Q] and [Ms P]. I note that these letters refer to matters such as the applicant’s participation in church activities and her good character. I accept that [Pastor Q] and [Ms P] regard the applicant as a person of good character and I have had regard to this in assessing her claims. I accept that she is an active and valued member of the church community. Nevertheless, for reasons outlined 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

116. The Tribunal affirms the decision not to grant the applicant a protection visa.
Don Smyth
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4268

30 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction