2404887 (Refugee)

2404887 (Refugee) [2024] AATA 2181 (31 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Aishwarya Somal
CASE NUMBER:  2404887
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Tania Flood
DATE:31 May 2024
PLACE OF DECISION:  Sydney
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 31 May 2024 at 10:08am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – membership of particular social group – older, widowed woman with no financial resources – economic conditions, public unrest and crime – threats and harassment but no physical harm – family home now under control of estranged brother – impractical for sons to protect her everywhere at all times – country information – gender-based violence and limited police response – relocation not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 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 12 September 2023. The visa was refused on the basis that the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to PNG for the reasons claimed.
The applicant appeared before the Tribunal on 29 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants two children who were present at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
The applicant was represented in relation to the review.
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 is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s background and a summary of her claims
According to information contained in the application for a Protection visa the applicant is a [Age]-year-old, widowed woman. She was born in [Town] in [Province] but resided in Port Moresby. She indicated she has two children residing in Australia and two sons residing in Port Moresby. She indicated that her parents are deceased and she has two remaining [siblings] (a brother and sister) residing in Port Moresby. She indicated she is a Christian and that she retired from employment in May 2008 and has been supporting herself with personal savings.
The applicant outlined her claims in a statutory declaration dated 19 September 2023 provided to the Department. Her claims are as follows:
She comes from a family of [number] with a half-sister from her father’s second marriage. Out of [those] children [some] have passed on and [the others] are alive. Her half-sister lives with her mother in rural central province and her brother has migrated to Australia.
She claims that public transport in Port Moresby is very dangerous, especially for women. She claims that she has been at risk of being robbed and threatened on several occasions and she is always afraid of being attacked. She does not drive so relies on public transport.
She claims she is also at risk of violence because she is a woman.
She claims that her day-to-day life in Port Moresby is very difficult. She is afraid to go out alone, especially at night and she is afraid to take public transport. She is also afraid to walk around in her neighbourhood because of the high crime rate and to answer her door at night. She does not feel safe in the home she lived in or in the community.
She claims she has no-one in Papua New Guinea (PNG) to protect her and she has no financial resources. She does not have a government pension or life savings. Her only financial support is her two children who live in Australia.
On return to PNG she will be vulnerable to violence because she is a woman living alone with no financial resources and no-one to protect her.
On 19 September 2023 the applicant’s representative submitted to the Department country of original information regarding crime and unrest in PNG and the situation for women. In a submission to the Department dated 13 February 2024 the applicant’s representative argued that the January riots in PNG exacerbated an already insecure situation for women and children in the country.
Delegates decision
The delegate accepted that women are subject to incidents of official and societal discrimination and violence as a result of their gender in PNG. However, the delegate was not satisfied that all women face the same risk of harm. The delegate concluded that the applicant does not have the same degree of vulnerability as other women noting that she is educated and has family support in PNG and Australia. Further the delegate considered the applicant could take steps to avoid becoming a victim of crime such as not travelling alone at night or in deserted areas. The delegate found that there is a not a real chance or a real risk the applicant will suffer serious or significant harm on return to PNG for the reasons claimed.
Evidence before the Tribunal
In a submission dated 22 May 2024 it is argued that the applicant has vulnerabilities including an inability to defend herself due to her age, marital status as a widow and her gender which inherently increase the likelihood of exposure to crimes of opportunity such as assault and theft. It is submitted that evidence confirms that public transportation such as public motor vehicles (PMVs/buses) and taxis are often in a state disrepair but a United Nations report which assessed the experiences of violence against women and girls whilst using public transport concluded that women still heavily rely on and use both PMVs and taxis, as this group is least likely to have access to other forms of transportation. It is noted that the same report found that over 90% of women studied reported experiencing some form of sexual violence when accessing public transportation (whilst riding buses, waiting at the bus stop or in taxis). The most common type of violence reported included verbal sexual remarks, extortion, robbery, threats or intimidation, inappropriate touching and indecent exposure. It is submitted that because the applicant does not have a drivers licence or personal motor vehicle she is subject to a wide array of vulnerabilities on public transport.
It is further submitted that the statutory definition of a refugee and well-founded fear of persecution does not include the availability of familial support as a mitigating factor and the primary consideration is the state’s ability to offer protection against persecution. It is argued that the delegate erred in placing undue weight on the presence of the applicant’s familial support or level of education. It is argued that the applicant’s educational background does not in any way protect her from the pervasive and severe risks to life and violence faced while undertaking her day-to-day activities as a [Age]-year-old widow in PNG. Gender-based violence, societal discrimination and lack of state protection are widespread issues which education alone is not able to counteract. It is further submitted that the applicant’s adult sons are unable to support their mother due to their own economic hardships and personal obligations.
The applicant’s adult sons in PNG also provided personal statements in support of her claims as did her two children in Australia.
The applicant reproduced the statement of claims provided to the Department on 19 September 2023.
Tribunal hearing
During the hearing the applicant provided more detail about her life in PNG. She stated that just prior to her husband passing away they moved from [Town] to Port Moresby where they lived in a rental flat. When her husband died she went to live with her sister in the neighbourhood of [Neighbourhood] in the house which was owned by her late father. In the years between 2009 when her husband died and 2020 when she last entered Australia she lived between this house and the house of her daughter who was still residing in PNG at that time. Her daughter had a good job and was able to afford accommodation in another part of the city. She spent the bulk of her time living with her daughter because she felt it was too unsafe in [Neighbourhood]. She described [Neighbourhood] as a crime ridden suburb situated next to informal settlements. She referred to the rioting which occurred in [Neighbourhood] in 2023. She said that bus stops in the area are locations where much of the violent crime occurs. She said the security situation has worsened since she left the country. Her son, who was present at the hearing, reiterated these concerns about [Neighbourhood] and safety in the country in general.
In 2020 her daughter moved to Australia to be with her husband and the applicant accompanied her on a Visitor visa. She has two sons in PNG who are currently residing in the house of her late father. They are both unemployed and survive through the sale of small items. Neither of them owns a vehicle.
The applicant explained that in August 2023 her sister passed away and her father’s house is now under the control of her brother who is also now resident in Australia. She said that her sister did not have a will and the arrangement whereby her brother has taken control of the house was done under a verbal agreement between him and her sister. She said that tensions have arisen in the family because of this and the fact that the applicant has been afforded no share of the property. The applicant explained that she and her brother are not on speaking terms and her two sons, who are currently living in that property, and who also are ex-communicated by their uncle, do so with great uncertainty about their future ability to remain living there. As neither of her sons is employed and they have children to support the situation is very fraught. If she returns to PNG she would have no choice but to move in with her sons in that property and her future would also be very unstable. The house has three bedrooms and is currently occupied by her sons, their [children]; her nephew, his wife and their [children].
The applicant explained that she retired from employment in 2008 and has effectively been supported by her two children in Australia ever since. She has never worked again either in PNG or in Australia. Since the death of her husband she has remained single. Neither she nor her husband received pension payments. Whereas her husband left her some savings that money has been exhausted. If she is required to return to PNG she would be forced to look for work. She believes her two children in Australia would likely continue to help her but their ability to do so in the current economic climate is limited.
The applicant stated that she has a half sister in PNG but she resides in her mother’s village some one or two hours from Port Moresby. She has some other distant relatives on her mother’s side who live in another village. She is not close to those relatives as they hold some grudges against her immediate family due to disputes over land.
The applicants two children in Australia are married and they have [children] between them. They both work. Both make return visits to PNG on occasion but they stay in hotels as they consider it unsafe to reside in [Neighbourhood]. They do not provide financial assistance to their siblings in PNG apart from at times of emergency.
The applicant reiterated her fears of being harmed on return to PNG due to her age, being widowed and her gender. She confirmed to the Tribunal that she did not previously suffer any physical harm in PNG but there have been occasions when she very nearly did. She related an incident which occurred on a PMV in Port Moresby where she was threatened with a knife and other incidents whereby she was verbally harassed. She stated that if she returns to PNG it will be known that she has returned from Australia and this could expose her to further criminal activity.
As to whether her sons in PNG could protect her from the harm she fears she does not think so. She noted that they have their own struggles to survive and it would be impractical for them to accompany her every time she needs to leave the house.
The applicant stated that she would not have the confidence or required level of trust to seek help from the police in PNG. She also said that the Wontok system is strong in PNG and any attempt to report a perpetrator could result in retribution.
The applicant’s representative stated that they are also relying on the written submission made to the Tribunal.
Country Information
Women
The most recent DFAT report[1] states that gender discrimination exists at all levels in PNG and cultural barriers continue to significantly limit the extent of female participation in political, economic, social and religious activities. In 2020, PNG ranked 161 out of 162 countries on the UNDP’s Gender Inequality Index (162, Yemen, being the worst).
[1] DFAT Country Information Report Papua New Guinea, 6 September 2022
DFAT reports that violence against women and girls in PNG is very common, among the most common in the world. 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 2016-2018, which is the largest 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 (gender-based violence) states that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of GBV every year.
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.
DFAT reports that 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. 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 RPNGC 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.
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. FSVUs are typically subject to the same resource constraints as the rest of the RPNGC.

DFAT reports that 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 suggests its implementation remains weak. 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. Furthermore, sources report the RPNGC typically lacks the inclination and resources to enforce such orders.
According to the DFAT report 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. While women’s refuges exist in PNG, they are insufficient for the level of GBV that exists.
On the issue of internal relocation DFAT reports that 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. 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.
A Papua New Guinea Demographic and Health Survey[2] found that of 4873 women aged 15-49 surveyed, physical violence was experienced by more divorced, separated or widowed women (experienced by 70 per cent) and currently married women (63 per cent) than never-married women (30 per cent). 78 per cent of surveyed ever-married women (ie women who are currently married, or were married but have since separated/divorced/become widowed) who experienced physical violence and 77 per cent who experienced sexual violence, reported their current husband as its perpetrator: 66 per cent of never-married women who experienced sexual violence reported current or former boyfriends, and 6 per cent strangers, as its perpetrator.
[2] Papua New Guinea Demographic and Health Survey 2016-2018 (November 2019)
Significant human rights issues identified in a 2023 US Department of State report on human rights practices include extensive gender-based violence, including domestic or intimate partner violence and sexual violence. The report notes that in January, Human Rights Watch’s World Report stated that the country remained a dangerous place for women, with weak law enforcement fostering a culture of impunity. Police officials acknowledged police could not keep women and children safe and lacked resources for thorough investigations. It is further reported that women faced severe inequalities in all aspects of social, cultural, economic and political life. [3] A 2023 Freedom House Report also notes that women face discriminatory practices regarding property rights and inheritance, especially under customary laws.[4]
[3] Country Reports on Human Rights Practices for 2022 – Papua New Guinea, US Department of State, 20 March 2023
[4] Freedom in the World 2023 – Papua New Guinea, Freedom House
These assessments are widely confirmed by other sources.[5]
[5] ‘Study finds PNG women with more wealth, education experience higher levels of domestic violence’, ABC News, 23 February 2023; ‘Freedom in the World 2023 – Papua New Guinea’, Freedom House, august 2023; ‘Country Reports on Human Rights Practices for 2022 – Papua New Guinea’, US Department of State, 20 March 2023
Law and order
Papua New Guinea has the second highest crime rate in the world with a crime index of 80.79; Venezuela ranked first with a crime index of 83.76.[6] DFAT[7] reports that violent and petty crime are common in PNG, especially in Port Moresby, Lae and other urban centres. Robbery, assault, sexual assault and gang rape, and property crimes are all relatively common. Informal settlements in and around towns and cities are particularly dangerous. ‘Bush knives’ (machetes) and guns are often used in assaults and robberies. Most robberies involve weapons. Women face a much greater risk of sexual assault and robbery. Police response is usually inadequate.
[6] Crime Rate by Country 2023 (worldpopulationreview.com).
[7] DFAT Country Information Report, Papua New Guinea, September 2022
This assessment is confirmed in reports by the US Department of State and the United Kingdom.[8]
[8] Papua New Guinea Country Security Report, OSAC (Overseas Security Advisory Council), Bureau of Diplomatic Security, United States Department of State, 1 September 2021; Foreign travel advice – Papua New Guinea, United Kingdom Government, 24 April 2023.
FINDINGS AND REASONS
The applicant produced her passport at the hearing and the Tribunal finds she is a citizen of PNG and that PNG is her receiving country for the purposes of the Act.
Fear of harm as a vulnerable person
The Tribunal accepts the applicant is a [age]-year-old woman and that her husband passed away in 2009. The Tribunal accepts that she would return to PNG as an elderly widowed woman.
The Tribunal accepts that if the applicant is required to depart Australia she will return to Port Moresby and reside in her late father’s house with her sons and other relatives in [Neighbourhood]. The Tribunal accepts that this property is currently the subject of a family dispute. The Tribunal also accepts, based on the statements provided to the Tribunal and the oral testimony received at hearing, that the applicant’s two sons are unemployed and struggling in the current economic climate to support themselves and their own children.
Having regard to the submissions, the Tribunal also accepts that [Neighbourhood] is an area with a particularly high crime rate which recently experienced an eruption of violence and serious rioting. Whilst the applicant has not claimed to have suffered serious physical harm in the past in [Neighbourhood] or elsewhere, the Tribunal accepts she was the victim of threats, once involving a knife, and verbal harassment in this area.
The most recent DFAT report confirms that levels of violence against women are extremely high across PNG with gender-based violence labelled an epidemic. Whilst DFAT and the other sources referred to in the country information section above focus on the appallingly high rates of family and domestic violence this epidemic of violence also includes high rates of gender-based violence outside the family, in public spaces or other contexts, including on public transport.
The UN report referenced in the submission to the Tribunal concluded that despite public transportation such as public motor vehicles (PMVs/buses) and taxis often being in a state of disrepair and places where women are often mistreated, women still heavily rely on and use these forms of transportation as they are least likely to have access to other forms of transportation. The report found that over 90% of women studied reported experiencing some form of sexual violence when accessing public transportation (whilst riding buses, waiting at the bus stop or in taxis). The most common type of violence reported included verbal sexual remarks, extortion, robbery, threats or intimidation, inappropriate touching and indecent exposure.
The Tribunal accepts that if the applicant returns to live in [Neighbourhood] she will be reliant on public transportation as neither she nor her sons own a vehicle. While she might enjoy some protection from the harm she fears from her male sons whilst staying in the house the Tribunal accepts it would be impractical and improbable that her every move outside of the house would be in their company. The Tribunal accepts she will be required to travel alone on public transport to attend to everyday activities. As such and given the prevalence of violence against women in PNG, including on public transport, the Tribunal considers that there is a chance which is not remote or far-fetched that she could be seriously harmed, including being sexually harassed, threatened or physically harmed, while moving about in her community.
The violence which women commonly face in PNG cannot be separated from the lack of equality and gender discrimination across all levels of society. PNG ranked 161 out of 189 countries measured by the UNDP gender inequality index in 2020.[9] As such, DFAT assesses that women across PNG have a high risk of societal discrimination due to long-standing traditional values and gender roles and face a high risk of gender-based violence, regardless of their social status. This assessment is widely supported by other sources referenced herein.
[9] UNDP Gender Inequality index 2020 (2019 data), Gender Inequality Index (GII) | Human Development Reports (undp.org)
Having regard to the country information the Tribunal is satisfied that the harm the applicant will face arises due to her vulnerable status as a woman and/or because she is an elderly widowed woman. The Tribunal accepts that women, and elderly widowed women, constitute groups which are identifiable by common characteristics, namely their age, marital status and gender and that these characteristics distinguish these groups from society at large. The Tribunal also accepts that the characteristics common to these groups is not a shared fear of persecution. Therefore the Tribunal finds that the serious harm the applicant will face will be due to her membership of particular social groups, namely women or elderly widowed women in PNG.
The Tribunal is satisfied that there is a real chance the applicant will face serious harm at the hands of non-state actors. Despite that there have been some attempts to pass laws and resource Family and Sexual Violence Units within the police force, the country information outlined above, including about the inadequacy of police protection for victims of gender-based violence indicates that state protection is ineffective and often allows perpetrators to act with impunity. Gender-based violence by police officers themselves is reportedly high. The available country information indicates that there is a systemic failure in PNG to properly protect women from violence.
The applicant quite understandably stated at hearing that she does not trust the police and would not have the confidence to seek police protection in PNG. Given the country information discussed herein the Tribunal finds her stance justified. The Tribunal accepts that there is a real chance the applicant would be discriminatorily denied state protection against serious harm from men in the community for reasons of her membership of the abovenamed particular social groups. The Tribunal considers that this reason would be the essential and significant reason for withholding state protection and this would be systematic and discriminatory because it is targeted at women specifically.
The Tribunal has considered whether the harm the applicant fears could be avoided by her living somewhere else in PNG. Relevantly, the applicant is [Age] years old, is a widow and has not worked since 2008. The Tribunal is satisfied that the only home she could reasonably be expected to return to is that currently occupied by her sons and other relatives in [Neighbourhood], Port Moresby. While she indicated she has a half-sister and some distant relatives living in villages outside of Port Moresby the information before the Tribunal does not support that it would be feasible or indeed reasonable for the applicant to live with them. In any event, the country information indicates that crime and violence against women occurs throughout PNG.
Having regard to all the above, the Tribunal finds that the applicant will face a real chance of serious harm from men in the community on return to PNG for the essential and significant reason of her membership of particular social groups – women and/or elderly widowed women in PNG. The Tribunal finds she has a well-founded fear of being persecuted on return to PNG now or in the reasonably foreseeable future. Therefore she satisfies the criterion set out in s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Tania Flood
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 2181

31 May 2024

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