2403002 (Refugee)

2403002 (Refugee) [2024] AATA 3977 (11 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Abby Jiang
CASE NUMBER: 2403002

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Bridget Cullen
DATE:11 September 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 11 September 2024 at 2.49pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – women – separated women – family violence – gender-based violence – physical assault – fear of killing – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, 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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 15 February 2024 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 18 October 2023. The delegate refused to grant the visa on the basis that the Delegate found that the Applicant was not a person in respect of whom Australia has protection obligations.
The Applicant appeared before the Tribunal on 4 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tosk and English languages.
The Applicant was represented in relation to the review. The Applicant’s representative, Abby Jiang, attended the Tribunal hearing, and made helpful written and oral submissions on the Applicant’s behalf.
There is no evidence before the Tribunal to suggest that the Applicant has the right to enter and reside in any safe third country for purposes of s 36(3) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Applicant has a well-founded fear of persecution on return to Papua New Guinea or, if not, whether there is a real risk she will suffer significant harm if removed from Australia to Papua New Guinea.
The identity of the Applicant
The Delegate was satisfied that the Applicant had identified herself as a national of Papua New Guinea, on the basis of the identity documents provided by her to the Department, including an uncertified copy of her passport, birth certificate, and national ID card. The Tribunal has no reason to question the identity of the Applicant, and accepts that she is a Papua New Guinea national, and has assessed her claims against that country in relation to s 36(2)(a) and s 36(2)(aa) of the Act.
The Applicant’s personal history
The Applicant’s history includes two relationships that were permeated with domestic violence, in PNG.[1] The first of these relationships was with her ex-husband, [Husband A]. The Applicant and [Husband A] met in 1999, and began their relationship in or around [year]. Shortly after, the Applicant fell pregnant to [Husband A], and left high school. Her [first child, named], was born in [year], and her [next child, named], was born in [year].
[1] The Applicant’s detailed Statutory Declaration, dated 25 January 2024, was consistent with the evidence provided orally by her at the hearing.
The Applicant says that following the birth of her [second child], her family was paid a bride price of [amount] Kina. During her marriage, the Applicant experience a very high level of domestic violence, including attempts by [Husband A] to run her over with a car, and to strangle her with a scarf. The Tribunal accepts that this violence occurred, as did the Delegate.
The Applicant escaped the violence, by leaving the village she was living in with [Husband A], and taking their [second child] to Port Moresby, in 2009. This was done under the auspices of accessing better education for [that child]. The Applicant’s parents assisted in caring for the Applicant’s [second child] in Port Moresby, and the Applicant commenced a two-year [qualification]. When [Husband A] learned that the Applicant was studying, he did not approve, removed his [second child] from the Applicant’s parents’ care, and demanded that the Applicant return home to him.
The Applicant’s parents acceded to this request. Meanwhile, the Applicant met a fellow student, who would become her de facto partner, and who would also subject her to significant abuse. The Applicant says that she believed that if she was in a relationship with this fellow student, [Partner A], that her parents would not force her to return to [Husband A], who she was afraid of.
During the course of her relationship with [Partner A], the Applicant gave birth to four more children: [names and years of birth].
The Applicant discovered that [Partner A] had another wife, which led to a confrontation between them. The abuse was verbal and physical, and escalated over time. The Applicant says this took a toll on her health, and she ceased work. [Partner A] then also ceased work, and they began to reside with the Applicant’s parents. As they were both unemployed, the financial stress was difficult and resulted in an ability to afford food. The Applicant would sometimes go hungry so as to allow her children to eat.
The abuse of the Applicant by [Partner A] continued, and resulted in her needing stitches following his throwing a [projectile] at her head. The Tribunal accepts that this abuse occurred, as did the Delegate.
The Applicant secretly applied for a passport, having been told by a relative that there were work opportunities in Australia. At the time she decided to seek work in Australia, the Applicant was experiencing domestic abuse, in her de facto relationship with [Partner A].
After learning that the Applicant might work in Australia, [Partner A] threatened her and burned her ID cards without realising she had already applied for a passport. The Applicant has provided a copy of these text messages to the Department. In part, these messages, read as follows:
It’s finale. Just don’t come home to avoid this terrible pain, just stap outside pinisim wok blo you pamuk na go.i will make sure you don’t get your savings and will not going to Australia. Killing you easily and watch you die!!
Save it and I’m telling and I told you am ready to go to bomana!
We’re good without you.stap outside osem na pinisim wok blo you na go! You like kam bear in mind what’s am gonna do. I will stab you,slice your pussy pour hot water into it! I’m prepared to go to bomana n rot!!
Prior to her departure for Australia, the Applicant was threatened with a knife in front of her children. The Applicant says that this behaviour by [Partner A] caused her to fear for her life.
The Applicant then first arrived in Australia [in] February 2023, on a Temporary Work visa, and worked on a farm in [City 1]. In October of 2023, the Applicant arrived in Brisbane and applied for a Protection Visa (the subject of this review) on 18 October 2023.
The Applicant’s claims
The Tribunal observes that the Applicant’s claims at the Tribunal hearing are consistent with those that were made by her to the Department.
The Applicant claims a well-founded fear of being persecuted in all areas of PNG, on account of her membership of the following particular social groups:
·Women in PNG;
·Single or separated women in PNG;
·Women who have experienced domestic and family violence; and
·Women who have left abusive ex-partners in PNG.
The Applicant’s supporting evidence, in the Tribunal
The Applicant has provided the Tribunal with the following documents, in support of her claims, in addition to the information that she provided to the Department:
·Applicant’s Statutory Declaration dated 27 May 2024;
·Report from [Doctor A] at [Clinic 1], dated 28 March 2024;
·Support letter from [Support Agency 1] dated 28 May 2024;
·Discharge summary from [Hospital 1] relating to the Applicant’s hospitalisation due to acute liver injury, dated 14 March 2024;
·Screenshot of message from the Applicant’s cousin [Cousin A] dated 19 April 2024;
·Photograph of the Applicant’s ex-partner, [Partner A] and his cousin, [Relative A], who is a police officer; and
·Facebook account “[variant of the applicant’s name]” that the Applicant suspects that her ex-partner, [Partner A] created in her name.
The Applicant commenced counselling with [Support Agency 1] in March of 2024. The letter of support from her caseworker outlines the horrific experiences the Applicant has endured by her partners, in PNG. This has included strangulation, sexual violence, and physical attacks in the presence of her children.
In 2018, the Applicant says, and reported to her counsellor, that [Partner A] threw a [projectile] at her, hitting her in the head and knocking her unconscious. She has a permanent scar from this episode. The medical report from [Doctor A] corroborates the Applicant’s account of this abuse by her former partner:
“[The applicant] is a regular patient of mine at [Clinic 1]. Over a number of consultations [the applicant] has disclosed her experiences of intimate partner violence inflicted by her ex-partner, [Partner A] in Papua New Guinea.
On examination [the applicant] has a 3cm long scar on her left occipital region which is consistent with her description of being hit by a thrown [projectile] from a distance.”
The Applicant reported, during her counselling sessions, an episode where [Partner A] forced her to have sex without her consent:
In one incident in 2022, [the applicant] advises that she and her partner at that time were staying in her parent’s home, but that her parents were not home at the time. On this occasion [number] of the children were asleep and one remained awake in the bed they were sharing. [Partner A] was wanting to have sex however [the applicant] told him that he would have to wait to have sex with her. [The applicant] states that [Partner A] became very angry and banged on the floor, pulled off the sheets and threw the fan across the room. He asked the children to get out of bed with a harsh tone. he children were so scared that they cried outside. While relaying this incident conversation, [the applicant] was visibly upset and crying, apologising for becoming emotional. She stated that she felt at the time “Every week, I do not feel comfortable having sex. I felt physically and emotionally hurt. I do not see his respect,”
The screenshot from the Applicant’s cousin, [Cousin A], reads as follows:
[The applicant] your kids are going through a hard time, the big boy is selling banana and fish around the street, they are not going to school coz no break fast and lunch, even with broken shoes and uniforms. The father left the kids with their aunt and living with his wife, Last time the husband beat his wide and the wife’s family belt him up…The aunt who used to look after the kids are complaining that she want to go to the village coz she couldn’t afford to provide for the kids…really the kids are living as ophands and they need you as their mum…
The Applicant explained, and the Tribunal accepts, that she left PNG to work as she was desperate to escape the domestic violence that she had been exposed to. The Tribunal also accepts that it has been traumatic for her to leave her children behind, and that remaining in Australia, knowing her children are suffering without her, has been further traumatising.
In her counselling sessions, the Applicant has spoken of her distress in not being able to speak openly with her children back in PNG, as they are afraid to speak to her without their father, [Partner A’s] permission. The Applicant has reported, and the Tribunal accepts, that her children have heightened sensitivities to his potential issue as they observed significant domestic abuse prior to the Applicant’s departure from PNG. The Tribunal accepts that the Applicant genuinely believes she is at risk of serious harm should she return to PNG.
The Tribunal accepts the Applicant’s evidence that her family would be unable to protect her from further abuse were she to return to PNG. At present, and as reflected in the counselling notes from [Support Agency 1], [Partner A] and her children are presently living in her parents’ house. Her parents and brothers are “soft-hearted” and “their religious beliefs encourage them to avoid conflict with [Partner A]”. She has reported that since her departure from PNG, [Partner A] has damaged her parents’ house in anger, and threatened to kill her family with a bush knife if she did not return, leading to her parents and oldest daughter hiding in another room and seeking help from a family member.
When the Applicant was hospitalised in March of 2024, due to hepatitis, she feared that she might die, and called her children. This necessitated her speaking with [Partner A] to gain access to her young children. [Partner A] told her the reason she had hepatitis is that she has been unfaithful to him, and has had affairs with other men.
The Applicant says that [Partner A] exhibited paranoid and controlling behaviours. She believes that [Partner A] established a fake Facebook account in her name, in an effort to try and entrap her. The screenshot of the account is a photograph of the Applicant.
The explanation for this fake Facebook account, which the Tribunal accepts is plausible, is that [Partner A], in controlling the account and the message feature associated with the account, would establish whether any other men were attempting to communicate with the Applicant.
The Applicant is concerned that the PNG police force will not protect her should she return to PNG. She has provided a photograph of [Partner A], from his public Facebook profile, of him with his [Relative A]. [Relative A] is wearing a uniform that appears to be the uniform of the PNG Constabulary.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country Information
The following DFAT Country Information[2], confirms a high risk of violence to women across PNG:
Violence against women and girls in PNG is very common, among the most common in the world. In PNG, such violence is sometimes referred to as Gender-based Violence (GBV) or Family and Sexual Violence (FSV). Sources report that almost all women and girls will be subject to violence at some point during their lives. The PNG Demographic Health Survey of 2016-18, which is the latest data available, found very high levels of violence against women: 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15 (including 48 per cent in the last 12 months); 28 per cent experienced sexual violence; and 18 per cent of women who had been pregnant had experienced violence during their pregnancy. The PNG Coalition of Parliamentarians to End GBV states that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of GBV every year.
[2] DFAT Country Information Report – Papua New Guinea, dated 6 September 2022, paragraphs 3.18.
Further in relation to violence perpetrated against women in PNG, the DFAT Report[3] says:
While there has been significant attention paid to the level of GBV in PNG by the national government and NGOs, and some state resources made available to address it, the police response remains inadequate. The RPNGC lacks the capacity, including most especially vehicles, fuel and human resources, to respond to crime generally (see Police). However, its response to GBV is especially lacking. Domestic and international sources report that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Statistics provided by the RPGNC between December 2017 and October 2018 showed 2,013 family and sexual violence (FSV) cases were reported in Port Moresby and the Central Province, resulting in 195 arrests and 11 convictions; that is, only 1 in 200 of reported cases resulted in a conviction. Given how few women seek help from police, this suggests only a tiny proportion of perpetrators of violence are arrested or successfully prosecuted. Even seemingly clear-cut cases can end without a conviction. For example, on 3 September 2021, in Mt Hagen, following the murder of a 31-year-old woman, three men were released from prison following a magistrate dismissing all charges. This was despite the fact that, according to media reports, police found the deceased woman’s body wrapped in a tarpaulin in the back of her husband’s vehicle at a police checkpoint, with the other two co-accused men present, and the husband confessed to the murder. The men were re-arrested following public outcry.
[3] Ibid at paragraph 3.21.

Relevant to the issues the women in PNG face, the DFAT Country Information provides the following guidance (in addition to the information already extracted, above)[4]:
Article 2(5) of the Constitution calls for equal participation by PNG’s women citizens in all political, economic, social, and religious activities. While some women hold senior positions in business, the professions, and the civil service, gender discrimination exists at all levels in PNG and cultural barriers continue to significantly limit the extent of female participation. In 2020, PNG ranked 161 out of 162 countries on the UNDP’s Gender Inequality Index (162, Yemen, being the worst). Following the 2017 election in PNG, the national Parliament had no female members (and has had only seven since independence). In 2022, 201 women candidates nominated for the election – slightly higher than the 167 who contested in 2017 – with two women successfully elected to Parliament.
* * *
DFAT assesses that women across PNG face a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict their ability to fully participate in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide. Women who are subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.
[4] Ibid at paragraphs 3.17 – 3.19.
And, further in relation to women[5]:
In September 2013, PNG’s parliament unanimously passed the Family Protection Act (2013). It makes provision for interim protection orders (IPOs) and longer-term protection orders (POs), which forbid contact of the person seeking the order by a spouse, ex-spouse or family member. In-country sources told DFAT that this is a reasonable framework for a justice sector response to GBV, but suggest its implementation remains weak. IPOs can be issued by Village Courts, unlike POs, which must be issued by District Courts. While IPOs reportedly make a positive difference to perceived safety of FSV survivors, sources suggest they are not presently offering women in PNG much protection. Only about 1,000 such orders are issued per year, which is not enough given there are estimated to be 1.5 million acts of GBV in PNG each year. Furthermore, sources report the RPNGC typically lacks the inclination and resources to enforce such orders. That said, breaches of IPOs have reportedly been prosecuted upon occasion and offenders even jailed in several instances in Milne Bay province. Amendments to the Family Protection Act (2013) were passed in January 2022, which increased the penalties for breaching an IPO or PO, created an aggravated domestic violence offence and created an ‘Urgent Notice’ scheme.
Sources report a significant lack of services for people requiring assistance after suffering family violence. There are now 22 Family Support Centres (FSCs) across the country (one in each province), typically attached to a general hospital to provide health services for GBV survivors. But while the FSC model is an advance for GBV health responses, their services are insufficient. Each centre tends to have 1-2 staff, primarily nurses or social workers, rather than doctors, and receives between 30-100 GBV referrals per month. FSCs usually charge somewhere in the region of PGK 20 (about AUD 8 dollars) for services and/or medical reports. These reports are often used for family compensation negotiations rather than police investigations – and it is normally the families of the survivors who benefit from such compensation rather than the survivor herself.
While women’s refuges exist in PNG, they are insufficient for the level of GBV that exists. Sources report that Port Moresby, a city of 800,000 people, has only six safe houses for women suffering GBV, open to the public, and mostly run by faith-based organisations. Some of these safe houses have as few as two rooms, one for the survivor and one for a carer, while others can accommodate up to 10 survivors in a shared room. The situation for abused children is even tighter, with very few safe houses able to accommodate unaccompanied children.
[5] Ibid at paragraphs 3.23 – 3.25.
The DFAT Country Information outlines the following in relation to the police service and its adequacy as a means of protection:[6]
Police
The Royal Papua New Guinea Constabulary (RPNGC) is the national police force responsible for the investigation of crime and maintaining internal security in all regions of the country. At the time of independence in 1975, police services were estimated to only cover around 10 per cent of the country’s total land area and 40 per cent of the population. Since then, the size of the RPNGC has increased by only 30 per cent, while the overall population has more than quadrupled. In 2022, the strength of the RPNGC is approximately 5,500 personnel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC.
Alleged abuses of power and the use of unnecessary violence by police have been consistently highlighted by international human rights bodies. In March 2022, the 18-year-old son of a police officer was beaten severely by RPNGC officers in Port Moresby and driven about unconscious in the back of their van for hours before he was released to his family. As at the time of publication, there were no reported consequences for the officers responsible for the bashing. In April 2021, the US Department of State reported that 14 police officers had been suspended pending investigations into their alleged involvement in murders reported in Central, Western, and New Ireland Provinces in the previous two weeks.
The effectiveness of the RPNGC is severely limited by resource and staffing constraints. The police are routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. Sources reported that a trial in 2022 in Central Province for serious sexual offences against a child only went ahead because of NGO support in the form of petrol funding for the police and necessary accommodation provided to the complainant and her mother. One close observer of the RPNGC suggested that, while the full complement of police stood at around 5,500, only around one quarter of these were fully effective as police officers. RPNGC officers endure poor working and living conditions, including low remuneration; frequently need to assert themselves in violent environments, often without weapons or protection; have family/clan obligations to meet; and are generally poorly trained, particularly on human rights. Some police are also disinclined to act in response to some GBV, SARV or tribal fighting offences due to sympathy for the alleged perpetrator(s).
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.
[6] Ibid at paragraphs 5.3 – 5.6.
In relation to the prevalence of domestic violence against women in PNG, Country Information[7] indicates that:
PNG remains one of the most dangerous places to be a woman or girl, where violence against women and children is rampant. More than two-thirds of the women in PNG are victims of domestic violence. In June alone, there were 647 cases of domestic violence reported in Port Moresby. A 2020 academic study found that over a 19-month period, a specialist police unit set up to receive complaints of sexual violence in Boroko, Port Moresby, averaged 27 complainants per month, 90 percent of whom were female, and 74 percent of whom were under age 18.
PNG has laws in place to protect women and children, including the Lukautim Pikinini (Child Welfare) Act 2015 and the Family Protection Act 2013, but they are rarely enforced. Initiatives such as Family Sexual and Violence Units within the police force remain limited, with police themselves targeting children and adults for sexual violence. Lack of services for victims requiring assistance compounds the problem. In 2020, several instances of domestic violence sparked outrage in PNG. In June, boxer Debbie Kaoref released a video of her partner brutally beating her with an iron in front of her children. After footage of the assault was shared widely on social media, police arrested her partner and charged him with grievous bodily harm. In July, the partner of 19-year-old Jenelyn Kennedy reportedly killed her after six days of chaining her up, beating, and torturing her. Her partner has been charged with wilful murder.
[7] Human Rights Watch, World Report 2021 - Papua New Guinea, available at: World Report 2021: Papua New Guinea | Human Rights Watch (hrw.org) [accessed 18 December 2023]
Further, the Amnesty International Report[8] recognises that single women in PNG, in particular ‘experience a palpable fear of crime… [because they are] aware that they are viewed as easier targets’.
[8] Amnesty International, Papua New Guinea: Women Human Rights Defenders In Action, 4 September 2006, available at: Refworld | Papua New Guinea: Women Human Rights Defenders In Action [accessed 18 December 2023].
The Tribunal accepts, as did the delegate, that the Applicant has been the victim of serious domestic violence both in PNG and Australia, including violence by her ex-husband, [Husband A], and partner, [Partner A]. However, the delegate did not accept that the Applicant would be in danger on return, and found that the Applicant’s family tribal support network would provide her with support if required.
The Tribunal observes that the Applicant’s family, despite being willing to assist her with housing and childcare, has not been able to prevent her from enduring a horrific level of sexual violence, including strangulation, prior to her departure from PNG. There is simply no basis on which a reasonable Tribunal could find that having failed to protect her in the past, the Applicant’s family could protect her in the future.
Nor, could the Applicant relocate to avoid [Partner A]. As she points out in her statutory declaration dated 30 January 2024:
142. He has been threatening my family, and my mother. When he realised that I wasn’t coming back, he attacked my mother and father. I think this was around November 2023, my mother sent me a text message to tell me. I have a screenshot of messages from my mother.
143. [Partner A] said that they had to bring his wife back, or else they would cut my mum and my [first child]. He broke down my mum’s door when she was sleeping and cut up all the things in the house with his bush knife. The neighbours came to stop him.
144. [Partner A] still lives in my parent’s house with my four children. My mum and dad went back to the Southern Highlands to return to their village.
145. When I was in Australia, [Partner A] would call and say threatening things that he would stab me if I returned to PNG; he said he would cut off my leg and make me disabled. He said I had no one else to back me up. He said I am useless, if he were to kill me, no one would care and ask for compensation.
146. [Partner A] is a crazy man. He is scary. I believe he would try and kill me. He has beat me for lesser things, I know he would kill me.
….
162. [Partner A’s] community is known for fighting and being aggressive people, he knows where I could go, and he would come and find me.
163. [Partner A] has his tribesman who would tell him if they saw me. Some of his aunts are married to my uncles, and we have cousins from both sides in the Southern Highlands who would tell him that I had returned.
164. I also wouldn’t want to return to the Southern Highlands because that puts me very close to my first husband, [Husband A]. I don’t know what [Husband A] would do to me.
The Tribunal finds that there is a real risk that if the Applicant returned to PNG, she would be tracked down, and killed by her former partner. The Tribunal thinks it significant that the Applicant was strangled previously, as there is a large body of academic literature indicating that strangulation is a red flag for further abuse leading to fatality.[9]
[9] Douglas, H, Sharman, L and Fitzgerald, R, 'Domestic Violence, Sex, Strangulation and the ‘Blurry’ Question of Consent' (2024) 88(1)The Journal of Criminal Law 48-66; Douglas, H and Fitzgerald, R, 'Women’s stories of non-fatal strangulation: How should the criminal justice system respond?' (2022) 22(2) Criminology & Criminal Justice, 270-286; Douglas, Heather; Fitzgerald, Robin "Strangulation, Domestic Violence and the Legal Response" [2014] SydLawRw 11; (2014) 36(2) Sydney Law Review 231.
While the Tribunal does not draw any adverse conclusions about the way in which [Partner A’s] police officer cousin may behave towards her, the Tribunal observes that the country information makes it pellucidly clear that the PNG police force struggles to provide victims of domestic violence with any effective form of redress or safety.
It is this Tribunal’s view that the domestic violence the Applicant has endured, particularly the recent violence by [Partner A], is motivated by a desire to exert power and control over the Applicant. Having left PNG, and left her children behind, the Tribunal thinks it very likely that the Applicant would be exposed to a considerable amount of ongoing anger and vitriol on her return.
The Tribunal accepts the explanation given by the Applicant that she did not know, until she relocated to Brisbane and accessed social services, that she could apply for protection. The Tribunal considers that Applicant’s relatively short delay in applying for her protection visa to be explicable in a context where she was working on a rural farm following her arrival, and had limited access to services of the sort that she has been able to access on arrival to Brisbane. The Tribunal does not draw any adverse inferences in relation to the credibility of the Applicant’s claims as a consequence of the short delay.
The Tribunal accepts that the Applicant faces serious risk of harm from either her ex-husband [Husband A], or more particularly from [Partner A], were she to return to PNG. That [Partner A] has demonstrated a degree of suspicion that the Applicant has been unfaithful to him whilst in Australia is a significant factor in suggesting that the Applicant’s return to PNG would likely lead to conflict surrounding this issue. The Tribunal finds that the risk of violence is high, as the Applicant will be in a position where she will be forced to justify her behaviour while in Australia. The Tribunal thinks it likely that, no matter what she says, she will face suspicion, quite possibly leading to physical and sexual violence. In this respect, the Tribunal thinks that [Partner A’s] past performance is a strong indicator of future performance.
The Applicant will want to see her children if she returns to PNG. This will immediately place her in close proximity to both of her ex-partners, and therefore, real danger. Even if the Applicant did not contact her children, the Tribunal thinks it likely they would discover she had returned, and seek to engage with her, again posing danger to the Applicant as it is likely that she could not simply “fly under the radar” anywhere she was resident in PNG.
It is the Tribunal’s view that the DFAT Country Information supports a finding by the Tribunal that law enforcement in PNG would not afford the Applicant protection from serious domestic violence. The Country Information makes it clear that violence against women is widespread in PNG, and the Police Force is not able to protect women from abuse.
The Tribunal is satisfied that the Applicant cannot take steps to modify her behaviour so as to avoid a real chance of persecution in PNG; nor could the Applicant relocate within PNG to avoid the real risk of persecution. Accordingly, the Tribunal finds that the Applicant has a well-founded fear of persecution for reason of her being a member of a particular social group of Papua New Guinea women who have experienced domestic and family violence and left abusive ex-partners in PNG.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia, there is a real risk that she will suffer significant harm?
As the Tribunal has determined that the Applicant is a refugee in accordance with s 36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the Applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the Applicant will be persecuted for reason of her being a member of a particular social group of Papua New Guinea women who have experienced domestic and family violence and left abusive ex-partners in PNG. Her fear of persecution is well-founded as required by s 5J of the Act and therefore she is a refugee within the meaning of s 36(2)(a).
Conclusion: Complementary Protection
As the Tribunal has determined that the Applicant is a refugee in accordance with s 36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the Applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG.
Conclusion:
For the reasons given above the Tribunal is satisfied that the Applicant is a person in respect of whom Australia has protection obligations. Therefore the Applicant satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.
Bridget Cullen
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3977

11 September 2024

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