2408695 (Refugee) - [2025] ARTA 2046

2408695 (REFUGEE) [2025] ARTA 2046 (25 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2408695
Tribunal:General Member G Hamilton
Date:25 July 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration in accordance with the order that the applicant satisfies 36(2)(a) of the Migration Act.

Statement made on 25 July 2025 at 12:58pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – written claim of economic conditions and opportunities – application prepared by another person without applicant’s knowledge of contents – no adverse inference drawn – particular social group – women – fear of harm from former partner – customary marriage – financial, verbal, physical and sexual abuse, and threats to kill – death of baby – inaction by police – found after relocating – continuing threats by text messages – police and medical reports – country information – systematic discriminatory treatment of women – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65(1), 367A
Migration Regulations 1994 (Cth), r 4.14(1), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND

This is an application for review of a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 May 2023. The delegate refused to grant the visa on7 April 2024.
The applicant attended a hearing of the Tribunal. The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
One or more of the above-listed reasons must be the essential and significant reason or reasons for the persecution: s 5J(4)(a). Further, the persecution must involve systematic and discriminatory conduct: ss 5J(4)(b), (c).
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Arbitrary deprivation of life and the death penalty carry their ordinary meanings. Torture and cruel or inhuman treatment or punishment both involve intentionally causing severe pain or suffering, whether physical or mental. Degrading treatment or punishment is defined as intentionally causing extreme humiliation.
Under s 36(2B) Australia does not have complementary protection obligations 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 they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
CLAIMS AND EVIDENCE
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.
In her protection visa application the applicant said she was born in [Town], PNG in [Year]. She declared her relationship status as never married. She said she had no partner, parents siblings or children and that she was not in contact with relatives outside Australia. She was living in [City]. She said she had always lived in Bougainville. She is a citizen of PNG. She said she worked in “[Location], East Sepik” from 2014 to 2022 when she came to Australia to [do a job task]. She only had primary education.
The applicant said she left PNG because there were more jobs and better pay.
On 26 May 2025 the applicant made a statutory declaration. She said she grew up in [District] in Enga Province. She has [siblings]. Her father worked as [an occupation] and they were also [working in another role]. In her community family violence against women but not in her home.
She went to high school in [Town] and lived in a dormitory. She met an older man called [Mr A]. He let it be known through a friend that he liked and wanted to marry her. She was told he was a single father with [children], and owned a house. He worked in [work sector]. She considered her financial security and that of her family, and in due course he gave her a phone so they could communicate. He used to take her out on the weekends including to hotels. In due course they decided to marry and they told her parents. He said he would pay a bride price in the future. He never did. Her village councillor witnessed their customary marriage which took place in February 2016 (certificate supplied).
The applicant went to live at [Mr A]’s house in [Town]. She lived with him and his children, the eldest about her age. The mother had remarried. Initially they were happy but a few months later she got pregnant. She left school. [Mr A] started to distance himself. When she asked for money he started beating her. He said derogatory things about her family and asked where she used to get money from and told her to go and do garden work. If he came home late and she went to look for him, he would kick and punch her. He would be drinking at the local club and if she tried to talk to him he would get security to take her out. At five months pregnant she reported him to the police. They said they would arrest him if he did it again. She did not have ante-natal care because of the abusive situation. Her daughter was born with a serious disability. They did not have a birth certificate for her. [Mr A] did not care about the baby and continued to deny her help. They argued every day. He was also physically and sexually abusive.
Baby died at the age of 10 months. The applicant called a cousin and asked her to buy a ticket to Port Moresby. She went there about March 2018. [Mr A] came down to find and take her back. They fought and he hit her, and also hit her cousin. The applicant went to the police in Port Moresby. They said they would wait for a second complaint as they did not know the applicant or her husband. [Mr A] threatened to kill her family if she did not go back to [Town] with him so she had no choice.
When they got back she tried not to argue with him because she was worked about her safety and tht of her family. She did gardening to get her own money. Her parents advised her to stay with [Mr A]. They told her to go to church and pray to God about the situation. She went to family planning because she did not want to get pregnant again. But she was pregnant again in 2019. The abuse and mistreatment continued. She decided to leave in February 2021 and took her son and went back to her parents. In December 2022 she came to Australia on the PALM program. She left her son with her cousin in Port Moresby.
The applicant was pictured on [Social media] with other [workers] including men. [Mr A] tried to contact her on WhatsApp, but she blocked his number. He contacted her from a different number, sending threatening messages that he had not allowed her to go to Australia. He mentioned her family and said that if he sees them he will kill them. He said he would cut off her legs and she will be in a wheelchair. He has told her family that he will them and will kill the applicant if she returns.
She was introduced to someone who could apply for a visa for her on payment of $1000. He did not ask any questions about her situation and just submitted a visa application. He did not explain the criteria for the visa. He said all she would need to do to get the visa was to have her fingerprints taken. When her visa was refused she asked a friend for advice and they referred her to the ASRC who told her she had been scammed. She was later referred to her current representative for more assistance.
The applicant said in PNG she is still considered to be [Mr A]’s wife. He owns her and is angry that she has come to Australia without his permission. He had physically, sexually, verbally and financially abused her throughout their marriage. If she returns to PNG he will kill her. The police will not help her. Even if they wanted to, they do not have the resources. She is not safe anywhere in PNG.
The applicant’s representative made a written submission outlining the applicant’s claims and citing relevant country information. It was submitted that the applicant faced a real chance of serious harm and would be discriminatorily denied state protection and would also be denied protection because the police and justice system were not effective. She could not safely relocate and in her circumstances relocation was not practicable.
The applicant supplied a [Town] station police report from October 2016 stating that the applicant, at five months pregnant, had asked her husband for money for a medical scan and that in response he punched and kicked her leading to black eyes and a swollen face.
The applicant also submitted a document issued by the National Police HQ stating that the applicant had reported her husband in May 2018 for a further assault resulting in bruising and swelling.
The applicant also submitted two Enga Health Authority medical statements indicating that the applicant had been admitted to hospital in March 2017 with labour pains associated with trauma to her back. The baby was born but died due to traumatic injury during pregnancy.
The applicant also submitted a series of text messages from [Mr A] indicating that he was going to kill her or put her in a wheelchair if she stayed on in Australia. She also submitted messages from her brother, aunt and step-daughter about [Mr A]’s threats.
The applicant also submitted her grade 8 school report from 2014 indicating she had been an A student.
At the hearing the applicant reiterated the claims made in her statement. She said her schooling was often interrupted due to tribal fighting which is why she was [Age] years old when she completed year 8, and then she got married to [Mr A]. He was much older. Her daughter’s birth was not registered. Her son’s birth was registered because she had to leave him with a relative to come to Australia. In her marriage she was often punched and booted, and he did not look after her or their children, or his own children. He was a drinker. He only realised she was no longer living with her parents when he saw her on [Social media] in Australia. He still considers her his wife and in Enga men kill their wives.
Regarding the many biographical mistakes in her protection application, the applicant said the man who filled it in ([Mr B], [a Nationality background]) did not ask her any questions.
FINDINGS AND REASONS
Based on the information in her application, the Tribunal finds that the applicant’s country of nationality is PNG, and that she has no right to enter or reside in any other country.
The applicant claimed to fear harm because she is a woman. The Tribunal accepts that women are a particular social group in PNG.
Section 367A of the Migration Act requires the Tribunal to draw an unfavourable inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence presented before the primary decision.
In this case the applicant’s protection application contained many biographical (especially geographical) errors of a rather obvious nature. This corroborates the applicant’s claim that she was barely involved in the preparation of the application and was not aware that it involved the making of protection claims. This is a reasonable explanation for why the applicant’s family violence claims were not put before the Delegate. The Tribunal therefore is not required to draw an unfavourable inference as to the credibility of the claims.
Based on the police and medical reports, the Tribunal accepts that the applicant was physically and financially abusive to the applicant resulting in serious harm including during her first pregnancy. Based on the text messages, the Tribunal accepts that she remains at risk of being seriously harmed by him due to having come to Australia without his permission.
The applicant’s experiences are consistent with country information. DFAT’s Country Information Report Papua New Guinea 25 July 2025 includes the following information:
FSV (family and sexual violence) against women and girls is common in PNG. Violence is often perpetrated by male guardians/protectors of women and girls, as well as other male family members. … DFAT assesses women in PNG face a low to moderate risk of official discrimination in the form of inadequate state protection, reflective of resource constraints and individual prejudices of police rather than official policy. DFAT assesses women face moderate risk of societal discrimination due to traditional values, cultural traditions and stereotyped gender roles, which restrict their ability to participate fully in community decision making and politics. DFAT assesses women face a moderate to high risk of violence, particularly from male guardians/protectors and other male family members, on the basis of their gender.
…
The effectiveness of the RPNGC is limited by resource and staffing constraints, as well as low morale and high rates of absenteeism. Police officers are routinely restricted from investigating crimes due to shortages of vehicles and fuel. When crimes take place in remote rural areas, it is often difficult for police to investigate, make arrests and collect evidence due to challenging geographic factors and weather conditions. In addition, police officers are only deployed where accommodation is available (primarily barracks in smaller provincial capitals), not always where high rates of crime are taking place. As a result of inadequate resource allocation and staffing, in country sources said there were sometimes significant delays in responding to requests for assistance, with police often deprioritising investigation of cases not deemed 'high priority'.
…
Papua New Guineans regularly migrate to big cities like Port Moresby, Lae, and Mount Hagen in search of better economic and educational opportunities but also following divorce or to avoid tribal violence and natural disasters. Estimates suggest up to half of Port Moresby's population consists of internal migrants living in informal settlements. Social and economic barriers to relocation can impact vulnerable groups disproportionately, including single and divorced women, especially those leaving FSV situations.
DFAT assesses migrating to large urban areas may mitigate risks posed by inter-tribal conflict, GBV (gender based violence) and SARV(sorcery accusation related violence). However, vulnerable groups such as single and divorced women leaving family violence situations may face additional barriers to relocation including access to employment and housing.
The applicant faces a real chance of persecution due to her membership of the particular social group women. The Tribunal is satisfied that being a woman is the essential and significant reason for the harm the applicant faces, and that it is reflective of the systematic discriminatory treatment of women in PNG.
The applicant’s husband was already able to find her when she attempted to relocate to Port Moresby, and took her back to [Town] under threat. The Tribunal is satisfied that the real chance of her persecution relates to all areas of PNG.
The applicant has continued to be harmed even after engaging with the police in PNG. The Tribunal is satisfied that effective protection measures are not available to her in PNG. There is nothing she can reasonably change about her behaviour to stop her husband from harming her.
The Tribunal therefore finds that the applicant is a refugee within the meaning of the Act.
CONCLUSION

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Pursuant to Migration Regulation 4.14(1), the Tribunal orders that the applicant be taken to have satisfied s 36(2)(a) of the Migration Act.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Representative: Ms Rebecca Webb
Date of hearing: 2 June 2025