2404405 (Refugee)

2404405 (Refugee) [2024] AATA 3521 (2 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Noel Reeves
CASE NUMBER:  2404405
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Khanh Hoang
DATE:2 July 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 02 July 2024 at 11:11am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – fear of harm from ex-husband – ex-husband took second wife because he wanted a son – attacks, threats and monitoring by ex-husband and associates – reports to police and court proceedings – limited recent contact after relocating – largely consistent evidence, including documentary evidence – country information – traditional values and gender roles, gender-based violence and police inaction – real chance of harm in local area but relocation possible – claims under refugee criteria not accepted – complementary protection – relocation not reasonable – unemployment and care for children – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(c), (5), 5L, 36(2)(a), (aa), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB [2013] FCAFC 33
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 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 (PNG), applied for the visa on 11 October 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations. The applicant applied for review on 8 March 2024, and attached a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 11 June 2024 to give evidence and present arguments. The Tribunal conducted the hearing with the assistance of an interpreter in the Pidgin (PNG) and English languages.
Mr Noel Reeves represented the applicant in respect of the review. However, as Mr Reeves was unable to attend the hearing, the applicant appointed Mr Tim Madigan as her representative for the purposes of hearing. Both individuals are from the Refugee and Immigration Legal Service (RAILS).
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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.
Applicant’s identity and country of reference
Based on a copy of the applicant’s passport available on the Department’s file, I find that PNG is the applicant’s country of nationality and her receiving country for the purposes of refugee and complementary protection assessments.
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
Claims and evidence before the Department
The applicant’s background and circumstances
According to her protection visa application, the applicant was born in [Town 1] in the Southern Highlands Province of PNG. The applicant previously resided in [Town 2] (3 January 2003 to 30 December 2011), [Town 3] (1 January 2012 to 21 March 2021) and [Village] in [District] (22 March 2021 to 6 April 2023). The applicant is educated to college level. She previously worked in [work sector], most recently as a [workplace] manager in [Town 3] until March 2021. The applicant has [daughters] aged [Ages] from her marriage to her ex-partner, [Mr A].
The applicant attended an interview with the Department on 6 February 2024.
The applicant’s claims for protection
According to her protection visa application and information provided at the interview with the Department, the applicant fled PNG for fear of her life and the safety of her children from her ex-husband. The applicant explained at interview that she married [Mr A] in 2004 and led a happy life with him until 2015 when he married his second wife. The applicant started experiencing violence from [Mr A] in 2016.
Before the Department, the applicant referred to three major incidents of past harm:
·in February 2016, [Mr A] took away the keys to a car that she had bought and paid for with finance. [Mr A] ordered men from his village to get the car keys off her. When she refused to comply, she was beaten with a stick;
·in September 2016, after an argument she had with [Mr A] about signing a cheque, the applicant left the house to go into town. [Mr A] followed her and dragged her out of a moving bus and threw her on the ground. She was left unconscious, and she woke up in hospital; and
·in April 2023, approximately two weeks before she came to Australia, the applicant travelled to [Town 3] to buy a suitcase. She claims to have been attacked by [Mr A]’s brother [Mr B]. She was punched in the face and her possessions, including her phone and wallet were stolen.
At interview with the Department — and as noted on the delegate’s decision record — the applicant confirmed that she married [Mr A] in 2004 and they changed their names at the [Town 2] Courthouse. The applicant and [Mr A] signed a statutory declaration in front of village elders at a ceremony and a bride price was paid. However, the applicant stated that she lost all documentation regarding her relationship when her house was ransacked by [Mr A] and his relatives and associates. Following the interview, the applicant provided a copy of a document issued by the Western Highlands Provincial Authority, which confirms that she has care and custody of their two children. She also provided court documents which show that she made claims for child support from [Mr A]. Her claims for child support were ‘struck out’ by the court due to the non-attendance of both parties.
The applicant fears that if she were to return to PNG, she would be killed by [Mr A] and his relatives and associates. The applicant also claimed that [Mr A] had sent his cousins to kidnap her children once, and because of this, she took her children back to her village, where she was not working and was in hiding prior to coming to Australia.
Delegate’s decision
The delegate accepted that the applicant was married to [Mr A] and that she suffered domestic violence from him in 2016. However, the delegate did not accept that the applicant was harmed in 2023 by [Mr A]’s brother. The delegate reasoned that the applicant’s account of the incident was limited and lacking in detail. The delegate found that the applicant was not able to present a reasonable explanation for the sudden attack, even though [Mr A] did not harm the applicant in the six years previous, despite knowing her whereabouts. The delegate noted that the applicant had provided a police report number, however, this did not substantiate [Mr A]’s involvement in the attack. Rather, the delegate considered that the attack was random, and did not accept that [Mr A] was involved in the incident.
The delegate noted the applicant’s evidence at interview that she has only heard from [Mr A] two times in 2019 via telephone. During those calls, no threats were made, and no verbal abuse was initiated. The applicant stated that [Mr A] had not tried to contact her. He moved to Port Moresby in 2017 or 2019 and even though he knew of the applicant’s move to her village in 2021, he did not find her or harm her.
The delegate found that if [Mr A] wanted to harm the applicant, he could have done so before the applicant moved to Australia. The delegate did not accept that the applicant continues to be of interest to [Mr A] or that she is at risk of harm if she were to return to PNG. The delegate was not satisfied that the applicant faces a real chance of serious harm, or a real risk of significant harm, if she were to return to PNG.
Claims and evidence before the Tribunal
I have considered the following documentary evidence submitted by the applicant to the Department and the Tribunal:
·photographs depicting injuries sustained by the applicant including 4 photos from the [April] 2023 attack, 2 photos of injuries sustained in the February 2016 attack, and 2 photos depicting injuriefs sustained in September 2016 attack;
·three medical reports from the Western Highlands Provincial Health Authority dated [February] 2016, [September] 2016 and [April] 2023, respectively;
·photographs that depict the applicant’s home ransacked and vandalised by attackers looking for her car keys in February 2016;
·photograph of an incident report number made by local police following the [April] 2023 assault;
·family Court documents from PNG evidencing a child support application from June 2016 including a complaint made by the applicant for child support from [Mr A];
·a letter from the Western Highlands Provincial Administration, CDD Child Custody Letter;
·court papers dated [January] 2017 striking out a claim for child support;
·two employment ID cards belonging to the applicant, from [Employer 1] and [Employer 2];
·a certificate of service from [Employer 2] certifying the applicant’s employment for the period 6 April 2017 to 4 March 2021;
·supplementary statutory declaration made by the applicant dated 23 May 2024;
·statutory declaration of [Mr C], the applicant’s brother, dated 1 May 2024;
·pre-hearing submissions from RAILS, dated 27 May 2024; and
·post-hearing submissions from RAILS, dated 21 June 2024.
Tribunal hearing
At hearing, the applicant confirmed the information set out in her protection visa application. She further clarified that her father passed away in 2020 and she left her two children in the care of her mother, in her home village of [District] when she travelled to Australia. Recently, her mother has fallen ill and relocated to [Town 4] to live with one of her brothers. The applicant has three [brothers], two of whom reside in [Town 4] and the other in Port Moresby. The applicant is not close to her brothers and stated that she was much closer to her father.
The applicant’s [daughters] presently reside in [Village], [District], in the applicant’s parents’ house. The applicant supports her children by sending back money to them from Australia and they are further assisted by one of their uncles in the village. Despite this, the applicant stated that her children struggle being on their own and that they are not treated well in the village by others. In her supplementary statutory declaration, the applicant explained that her children have suffered mentally and physically from being exposed to her suffering family violence, and other children in the village bully them and call them names like ‘bastard’ and telling them that ‘this is not your place’ and ‘you don’t have a father’.[1]
[1] Supplementary statutory declaration, 23 May 2024, [16].
I asked the applicant about her relationship with [Mr A]. The applicant confirmed that they met in 2003 and were married in [Town 2] and that everything was ‘ok’ until 2015 when [Mr A] took a new wife. The applicant explained that he did so because he wanted a son that she did not provide him. The applicant said that this was when the problems started to arise, and he began beating her for no good reason. She stated that he had threatened to have her tortured and killed and that is why she had to move.
Incidents of harm in 2016
I asked the applicant about the incidents of February and September 2016. The applicant explained that when she was living with [Mr A] in [Town 3], she had bought two cars and she used one of them to drive and take her kids to school. The applicant claimed that after [Mr A] took a new wife, he wanted to take possession of the car she was using, but the applicant refused to give it to him. The applicant stated that [Mr A] sent 5 men — who used to ‘travel around with him’ and who supported him to get a new wife — to the applicant’s home to get the keys. The applicant was assaulted in front of her two children and the men took her car keys. The applicant stated that when her house was broken into, she went to the village court, but that [Mr A] had his own people there, and they were told to sort out the situation themselves.
In relation to the September 2016 incident, the applicant explained that the village she was residing in is some distance from [Town 3] and she was required to take a bus to work. The applicant stated that after an argument about signing a cheque, while she was catching a bus to work, [Mr A] stopped the bus and dragged her out. The applicant stated that this attack left her with [multiple scars]. She lost consciousness and woke up in hospital. The applicant stated that after she recovered from her injuries, she wanted to go the police. However, [Mr A] would follow her around and told her not to go to the police station.
In her supplementary statutory declaration, the applicant stated that when she was able to bring him to the police station, [Mr A] was able to talk to the policemen and they would tell her that it is family problem that should be resolved at the Village court level.[2] The applicant further stated that after taking [Mr A] to the police station, he would bash her up and lock her in the house for two or three days without food and asked his relatives to keep an eye on her so that she would not run away. The applicant took no further action with the police, and instead initiated proceedings in court for [Mr A] to provide maintenance for her children. However, [Mr A] did not present himself before the court on multiple occasions, and a court dismissed the application. In 2017, the applicant was given the care and custody of her children by the Community Development Division of the Western Highlands Provincial Administration. The applicant stated that she believed it was around this time that [Mr A] ran away to Port Moresby.
Continued monitoring and going into hiding from 2021 to 2023
[2] Supplementary statutory declaration, 23 May 2024, [10].
I asked the applicant when she last had a face-to-face interaction with [Mr A], and she said that it was in 2106. The applicant said that she received a call from [Mr A] around 2020 when her father passed away and he sent his condolences. Apart from that conversation, she has not spoken to [Mr A] since.
In her supplementary statutory declaration, the applicant stated that between 2015 and 2021, she received threats on the phone and from [Mr A]’s people, who would come into the [workplace] where she was working. They told her that [Mr A] had asked them to attack her and that they were monitoring her movements. They threatened to have her kidnapped and killed. The applicant believed that [Mr A]’s relatives and men threatened her because they considered her actions of taking him to the police station, initiating court proceedings and visiting children’s welfare offices was ‘destroying his reputation, and he was seen as a violent and abusive husband’.[3] The applicant stated that due to these threats, she made the decision to quit her job at the [workplace] in March 2021 before anything could happen and took her children to her home village in [District].[4]
[3] Supplementary statutory declaration, 23 May 2024, [4].
[4] Supplementary statutory declaration, 23 May 2024, [8].
In her supplementary statutory declaration, the applicant stated that she did not have freedom to move around or expose herself in public areas and that when she travelled to [Town 3], she would wear a face mask so that people did not recognise her.[5] At hearing, the applicant explained that life was difficult while she was in hiding in [District], and she did not receive any support from her brothers who had their own lives and family. She said that she had to plant cabbage and did some supplementary work helping people to make their passport applications to make ends meet.
[5] Supplementary statutory declaration, 23 May 2024, [41].
I asked the applicant about the statement in her statutory declaration that [Mr A] and his people were afraid to come to her village in [District] because this would incite tribal conflict. In her supplementary statutory declaration, she stated that if tribal conflict were to erupt, blame would go back to [Mr A], and he would be asked to provide compensation for damages and lives lost. The applicant explained at hearing that if [Mr A] did come to her village, people will retaliate by smashing his car or blocking the roads and there would be chaos if this happened.

I asked the applicant why, if she were to return to PNG, could she not safely reside in [District] given that she had been there for two years. The applicant said that she could stay in a house as it is safe, but she cannot go to public places outside of the village and that if [Mr A]’s people cannot get her and they could get her [girls]. She said that she cannot work in [District] and she is the only breadwinner that her [girls] have.
In relation to the incident of April 2023, the applicant confirmed that she went to [Town 3] to buy a suitcase. She was attacked by one of [Mr A]’s cousin brother, [Mr B], one of the five men who [Mr A] associates with. He punched her and left her with a bleeding nose, broken mouth and a black eye.[6] When the applicant reported the matter to the police, [Mr B] threatened the applicant in front of the police officer and stated that he had been given approval by [Mr A] to harm her. The applicant stated that the policemen hit him and threw him a cell, but he threatened her that if he sees her in [Town 3], he will do something to make her feel the same pain the police are giving him.[7]
Relocation
[6] Supplementary statutory declaration, 23 May 2024, [40].
[7] Supplementary statutory declaration, 23 May 2024, [44].
I explored with the applicant the possibility of relocation to [Town 4], given her family connections in that city. The applicant stated that she does not feel safe in [Town 4], as [Mr A] and his men have money, they can move around, and everyone has phones. She explained that she cannot rely on her family for support. She said that during her relationship with [Mr A], none of her family provided her with support, as they had their own to look after. She said that her family did not want to get involved with the situation and no one ever asked if they could assist her. The applicant’s evidence in this regard was consistent with a statutory declaration provided by her brother [Mr C], in which he stated that his family ‘regrets that we did not pay any attention to [the applicant] and her [girls]’.[8] The applicant stated that while she could find a job in [Town 4], she would not enjoy it and she would be living in fear of who is coming after her. The applicant stated that her village in [District] is safer, but she cannot work and provide for her children in that village.
Post-hearing submissions
[8] Statutory declaration of [Mr C], 1 March 2024, [2].
In post-hearing submissions, the applicant through her representative submitted that the violent attack on her in [Town 3] in April 2023 demonstrates that the risk of harm to her ‘would be a continuing state of affairs’.[9] The applicant submitted that the 2023 attack occurred in public despite her attempts to conceal herself and this demonstrates that she remains a person of interest to [Mr A] and his people. It was suggested that they are dedicated to the serious harm or murder of the applicant.[10]
[9] Post hearing submissions, 21 June 2024, p 2.
[10] Post hearing submissions, 21 June 2024, p 2.
The applicant also submitted that she could not relocate anywhere in PNG owing to the presence of the ‘wantok’ system, which would allow [Mr A] and his people to locate the applicant wherever she goes in PNG. The applicant also submitted that it is unreasonable and unpracticable for the applicant to remain indefinitely in [Village] to avoid the risk of harm. It was submitted that [Mr A] is ‘by no means guaranteed’ to remain reluctant to enter [District] forever.[11] While the applicant conceded that [District] provided her with ‘highly limited respite in the past’, such history does not guarantee that such respite would continue into the future.[12] The applicant submitted that the Tribunal should consider both the common violence seen in the Highlands as supported by credible country information, and [Mr A]’s evident determination to cause harm or death to her.[13]
[11] Post hearing submissions, 21 June 2024, p 4.
[12] Post hearing submissions, 21 June 2024, p 5.
[13] Post hearing submissions, 21 June 2024, p 5.
The applicant further submitted that she could not be reasonably expected to remain within the confines of [Village] indefinitely. This is because such villages have limited access to good and services, requiring villagers to visit neighbouring cities such as [Town 3] to obtain products, services, visit doctors or gain employment. Further, it was submitted that the applicant’s need to care for her children impacts her ability to remain in her village indefinitely, particularly as she needs employment in order to care for them.[14]
[14] Post hearing submissions, 21 June 2024, p 6.
COUNTRY INFORMATION
I have considered the following country information in reaching my decision.
According to DFAT’s September 2022 Country Report on PNG, under the heading ‘Women’, it states:[15]
3.18 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.
3.19 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.
…
3.21 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.
3.22 FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Levels of GBV by police officers themselves are high. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. However, the RPNGC has made some progress in recent years, establishing Family and Sexual Violence Units (FSVU) in every province. Sources told DFAT FSVUs represent progress in the policing of GBV, especially with regard to the willingness to investigate and make arrests, and in their connectedness to other services. However, there are not enough FSVUs to respond adequately to the scale of the problem. There are only 106 FSVU officers across the country and at the time of publication, there is a single FSVU officer in Tari, capital of the Highlands province of Hela, to cover the whole province (population of around 250,000). FSVU officers are typically subject to the same resource constraints as the rest of the RPNGC.
3.23 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.
3.24 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.
3.25 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.
[15] Department of Foreign Affairs and Trade, Country Information Report, Papua New Guinea, 6 September 2022, pp 15-17.
A range of other independent sources and reports have described sexual and GBV in PNG as being widespread. For example, the US Department of State’s PNG Human Rights Report of 2022 noted that GBV was ‘a serious and widespread problem’ and that despite the criminalisation of intimate-partner violence, it ‘nonetheless persisted throughout the country and was generally committed with impunity’.[16] Human Rights Watch’s World Report in 2024 highlights that ‘PNG remains a dangerous place to be a woman or girl’ and that gender-based violence remains ‘pervasive’.[17]
[16] US Department of State, Papua New Guinea 2022 Human Rights Report, p 12.
[17] Human Rights Watch, World Report 2024: Papua New Guinea, available at < >
DFAT’s September 2022 Country Report also notes the following with respect to internal relocation within PNG:[18]
5.15 Internal relocation for vulnerable groups in PNG may be possible – people can and do regularly migrate to cities, either in search of economic opportunities or to escape tribal and other violence or natural disasters. As much as 50 per cent of Port Moresby’s population is comprised of internal migrants residing in informal settlements. Those who relocate to Port Moresby and other major cities face very high unemployment – 80-90 per cent in the formal sector in Port Moresby – and very high levels of crime, including tribal fighting.
5.16 However, some people struggle to relocate within PNG to avoid issues such as GBV or SARV. Papua New Guineans commonly rely upon family and tribal networks for support, in the absence of government services. Lack of resources and language difficulties can present problems, especially for single women, even more so for those with children. Where relocation has succeeded, it has typically been accompanied by substantial NGO support. Exacerbated by the widespread take-up of mobile phones and social media, and the presence of diaspora from other parts of PNG (most especially in Port Moresby which one source referred to as ‘Little PNG’), those who relocate are often recognised in their new home and this information will typically be communicated to their place of origin. This may present a continuing threat to those attempting to escape violence (see Tribal Violence and Women).
[18] Department of Foreign Affairs and Trade, Country Information Report, Papua New Guinea, 6 September 2022, p 24.
DFAT’s 2022 Country Report also discusses the nature of the wantok and wantokism in PNG:[19]
‘Wantokism’ is a system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society. Wantokism affects most aspects of contemporary life in PNG, including in business and government. In the Tok Pisin language, Wantok means ‘One Talk’, referring to the language of the tribe or clan to which a person belongs. In PNG, the overall welfare of the tribe and its members is paramount. Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures those members of the tribe less able to look after themselves are supported.
[19] Department of Foreign Affairs and Trade, Country Information Report, Papua New Guinea, 6 September 2022, p 4.
FINDINGS AND REASONS
I found the applicant to be a forthcoming and generally reliable witness at hearing. She provided evidence that was internally consistent with the documentary evidence that she provided, as well as being largely consistent with her prior evidence to the Department. As such, I found the applicant’s claims to be credible and accept them in their totality.
In assessing the applicant’s claims, I have had regard to the National Domestic and Family Violence Benchbook. In particular, I have considered guidance in the Benchbook that research suggests ‘one of the most dangerous times for a victim [of family violence] is in the months after separation’.[20] Such an understanding is consistent with the applicant’s circumstances, where she began to experience violence in the aftermath of her separation and upon [Mr A] taking a second wife.
[20] National Domestic and Family Violence Bench Book, ‘Myths and misunderstandings’, <available at
Having considered the documentary and oral evidence before me. I accept, as a starting point, that:
·the applicant began a relationship with [Mr A] in [Year];
·the applicant and [Mr A] were married from [Year] to 2015 and they have two children;
·the applicant has care and custody of her two children who currently reside in [Village] in [District];
·the applicant experienced gender-based violence at the hands of [Mr A] and his relative and associates, including but not limited to, the incidences of harm in February and September 2016 and April 2023;
·the applicant was subjected to monitoring and threats to kill her by [Mr A]’s relatives and associates in [Town 3], causing her to flee with her children to [Village] in [District] in 2021;
·[Mr A], his relatives and associates remain motivated to harm the applicant; and
·the applicant fears that she will be killed or seriously harmed by [Mr A], his relatives and associates were she to return to PNG.
Refugee findings
I consider if the applicant were to return to PNG in the reasonably foreseeable future, that she would return [Village] — her village in [District] — where her children currently reside. Having regard to s 5J(1) and 5J(5) I find that if she were to do so, there is a real chance that she will face serious harm from [Mr A], his relatives and associates.
I have found above that the applicant has suffered serious harm in the past from [Mr A], his relatives and associates. The injuries depicted in the documentary evidence is consistent with the applicant having suffered significant physical ill-treatment: s 5J(5).
When looking into the reasonably foreseeable future, I acknowledge that the applicant has not had face-to-face contact with [Mr A] since 2016. However, the evidence suggests that [Mr A] has, in effect, authorised his relatives and associates to monitor and harm the applicant. I accept that the applicant was being monitored by [Mr A]’s relatives and associates in [Town 3] and that they threatened her with harm. In this context, I find it significant that the applicant — being the primary carer of her two children — took the step of resigning from a managerial role at a [workplace] in [Town 3] to relocate to [District] where she had limited access to employment, in order to protect herself from the prospect of any harm. I accept that the applicant did so because of a genuine fear for her life and safety and that of her children. I accept the applicant’s submissions that, while hiding in [District] from 2021 to 2023 provided her with respite from potential serious harm, it does not necessarily follow that she is guaranteed safety there in the reasonably foreseeable future.
There are two reasons that, when considered together, leave me satisfied that the applicant would be at risk of serious harm in the reasonably foreseeable future. First, I consider it not remote or far-fetched that [Mr A], his relatives and associates may want to enter [District] in the reasonably foreseeable future in order to harm the applicant. While I accept that past actions — namely their reluctance to enter [Village] because of the risk of tribal warfare — can be a reliable guide to future conduct, I cannot dismiss as remote or far-fetched that this may change in the reasonably foreseeable future. This is because [Mr A], his associates and relatives have demonstrated a pattern of harmful and threatening behaviour towards the applicant over an extended period of time. I have accepted that, as recently as 2023, the applicant was harmed by [Mr A]’s relative in [Town 3]. This indicates that the applicant remains a person of interest to them.

Secondly, even if I were to consider that the applicant could find safety in [District] in the very immediate future, I do not consider it reasonable or indeed practicable for her to remain in her village indefinitely to avoid the risk of harm. I accept that the nature of her life, and in particular, the need to take care of her two children would necessitate her leaving [Village] to visit [Town 3] and surrounds for a range of purposes. These include procuring goods and services, to attend medical appointments, or to seek employment. I accept the applicant’s submissions that country information suggests that those in rural communities are ‘deeply disadvantaged, often lacking electricity, rife with disease and facing extreme challenges in access to healthcare’.[21] The result is that those who live in rural places must continuously visit populated areas such as major cities to obtain basic services.
[21] Post hearing submissions, 21 June 2024, p 5 referring to Department of Foreign Affairs and Trade, Country Information Report Papua New Guinea (6 September 2022) [2.8], [2.17].
I have found above that the applicant has suffered numerous instances of serious harm in [Town 3], and I consider that if the applicant were to venture outside her village, she would place herself at risk of serious harm. Indeed, I have found above that despite the applicant’s attempts to conceal herself while in [Town 3], this did not stop her from suffering serious harm in a public place in 2023.
Having regard to the country information on the prevalence of GBV in PNG, in particular the elevated risk for women in the Highlands regions, the ineffectiveness of police responses, and the personal circumstances of the applicant, I consider that the applicant faces a very real chance of serious harm in the areas of [District] and [Town 3].
Further, I am satisfied that the applicant would face persecution in the areas of [Town 3] and [District] on account of her membership of a particular social group, namely, ‘separated women in PNG’. Having regard to s 5L(a)-(d), I am satisfied that being a separated woman in PNG is a characteristic shared by each member of the group and the applicant shares that characteristic. I am satisfied that the characteristic distinguishes the group from society and the characteristic is not a fear of persecution.
However, s 5J(1)(c) requires me to be satisfied that the real chance extends to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
I am not satisfied that the real chance extends to all areas of the receiving country in this case. Rather, the real chance of harm is localised to the areas of [District] and [Town 3]. I consider that [Town 4] is an area of the receiving country where the applicant does not face a real chance of serious harm. This is because all the instances past harm have occurred in the vicinity of [Town 3]. I have considered the applicant’s claims that because of the ‘wantok’ system, [Mr A] and his relatives would be able to readily track down the applicant in [Town 4]. However, the evidence before me does not suggest that [Mr A], his associates or relatives have any connections to [Town 4]. Nor is there any information to suggest that any of [Mr A]’s associates or relatives who were involved in harming the applicant in the past presently reside in [Town 4]. I consider that if the applicant were to relocate to [Town 4] upon return to PNG, the real chance of serious harm in that location is remote.
For the reasons above, I find that the s 5J(1)(c) is not met. The applicant does not have a well-founded fear of persecution under s 5J(1), and she is not a refugee under s 5H(1). 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 findings
I will now consider whether the applicant meets the criterion for complementary protection. That is, whether as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that she will suffer significant harm. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee criterion’.[22] I have found above that if returned to PNG, the applicant would likely go back to [District]. For the same reasons above, I accept there to be a real risk the applicant will experience harm in [District] and [Town 3].
[22] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
I have considered the definitions of significant harm in s 36(2A) and s5(1) and I am satisfied that the applicant faces a real risk of significant harm in these locations from [Mr A], his relatives and associates. I am satisfied that she would be at risk of being murdered, and I am also satisfied that [Mr A], his relatives and associates have the necessarily intention to inflict significant harm on the applicant.
I note that there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
In respect of relocation, I will consider whether it is reasonable for the applicant to relocate to [Town 4]. In making this assessment, I have drawn guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Having considered the applicant’s circumstances and the country information, I do not consider relocation to [Town 4] to be reasonable. While I accept that the applicant’s mother and two brothers reside in [Town 4], which suggests that the applicant has the support of her wantok there, the applicant’s evidence is that they have not provided her with any support in the past while she was in a relationship with [Mr A]. That her family did not support her in the past, due to having their own families to look after, is corroborated by the statutory declaration of her brother in [Town 4], [Mr C]. Moreover, I consider it significant that her mother did not take her children to [Town 4] to be supported by her brothers. As such, I do not consider that the mere presence of her family members in [Town 4] means that the applicant could rely on them as her wantok for emotional, financial and physical support. There is no suggestion that the applicant has wider wantok or support networks available to her in [Town 4].
If the applicant were to relocate to [Town 4], she would do so with her two young children. The country information above suggests that relocation is especially difficult for women with children in the absence of substantial NGO support. There is nothing before me to suggest that the applicant has such support. I note that the applicant is reasonably well educated and had a substantial employment history within the [work] sector. While this tends to favour a finding that relocation is reasonable, I also note that country information suggests in the context of relocation, that those who relocate to large cities, such as [Town 4] face very high levels of unemployment. As such, I consider jobs similar to that which the applicant held previously at a [workplace] would not be readily available to her upon return to PNG.
In all the circumstances, I am not satisfied that it would be reasonable for the applicant to relocate to [Town 4] and be able to support herself and her children there. I therefore find that s 36(2B)(a) does not apply to the applicant.
I will now consider whether the applicant 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. Having regard to the country information above which suggests that police responses to GBV is largely ineffective, I do not consider that the applicant could obtain protection such that there would not a real risk of significant harm. Indeed, the applicant has received inadequate responses from the police in the past, who have treated the applicant’s experiences of violence as a private matter. The available country information which suggests that GBV is widespread and pervasive in PNG further points to the inadequacy of state protection to those who have experienced GBV such as the applicant.
I do not consider that this is a case where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. As such, s 36(2B)(c) does not apply to the applicant.
For the reasons above, I am satisfied that the applicant meets the alternative criterion in s 36(2)(aa). I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Lastly, there is no information before me to suggest that the applicant has a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia. I find that s 36(3) does not apply to the applicant.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Khanh Hoang
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 3521

2 July 2024

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