2409570 (Refugee)

2409570 (Refugee) [2024] AATA 4176 (30 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2409570

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Stefanie Memmott
DATE:30 July 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 30 July 2024 at 10:38am

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – women – family violence – gender-based violence – bride price not repaid – physical assault – fear of killing – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
FCS17 v MHA (2020) 276 FCR 644
MIMA v Haji Ibrahim (2000) 204 CLR 1
Ram v MIEA (1995) 57 FCR 565
SZTEQ v MIBP (2015) 229 FCR 497
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 4 April 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of Papua New Guinea, applied for the visa on 29 September 2023.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The protection visa application includes, among other things, the following personal information about the applicant:
·The applicant was born in [specified year] in [Town 1], in the Western Highlands Province of Papua New Guinea.
·She is a citizen of Papua New Guinea and no other country.
·She completed primary school in [Town 1], undertook farm work and was supported by her parents and uncles.
·The applicant lived from birth until June 2022 in [Town 1], then in Port Moresby until December 2022 at which point she returned to living in [Town 1].
·Her [children], born in [respective years], remained living in Papua New Guinea. Both were born in [Town 1]. The applicant’s mother, father and siblings also remained living in Papua New Guinea.
·The applicant departed Papua New Guinea [in] July 2023, travelling to Brisbane as the holder of a Papua New Guinean passport and Australia visitor visa. Prior to that, she had not travelled outside Papua New Guinea.
The protection visa application sets out the following claims for protection and related information:
·The applicant left Papua New Guinea because she feared continuing to live there, as her husband would not leave her alone. She married him in around 2011 and separated from him some time in 2016. She separated from him because she was subjected to forms of violence, particularly physical. She has a [scar] from one instance when he tried to kill her with a knife.
·She was subjected to sexual and physical violence at the hands of her husband during their married relationship. He started to become violent towards her after the birth of their first [child] [Child A] because he accused her of having an affair with his cousin. They had a second [another child], [Child B], in [year]. She decided to separate from her husband sometime in 2016 because she could no longer endure the violence she was subjected to.
·After the separation, she went back to live with her parents. She took her [children] with her, as her husband is a drug addict and she didn’t want her [children] to be exposed to that lifestyle. However, her husband continued to harass her when she moved back to her parents’ house. He would demand that he pay back the bride price and let him have custody of their children.
·Sometime in 2017 the leaders of the village decided that her husband should take their [Child B] and that the applicant’s family should pay back half of the bride price. The applicant and her family agreed on this, but it didn’t take long for her husband to come back and demand custody of [Child A] too. The applicant thought it was fair they each have one [child] and didn’t want him to have both.
·Her husband continued to harass her before she came to Australia.
·The applicant reported her husband to the police on multiple occasions. Unfortunately the police did not intervene to protect her and her [child] from her husband.
·The applicant did not try to move to seek safety as she only has family in [Town 1].
·The applicant fears that if she returns to Papua New Guinea she will continue to be harassed by her husband. He will demand to take [Child A]. Even if he takes [Child A], the applicant fears he will continue to harass her and ask her to pay back the remainder of the bride price.
·She does not think she will be afforded protection from police and authorities due to corruption. She does not think she could relocate to avoid harm as not matter where she tries to move, she thinks her husband will find her and her [child] and continue to harass them.
The visa application notes that the dates of birth provided for her family members and other dates are estimates, and that she would provide more details about her protection claims at interview. The visa application form notes it was completed with the assistance of a legal practitioner from [Agency 1].
Supporting documentation
The file held by the Department of Home Affairs (the Department) includes certified copies of the applicant’s birth certificate, Papua New Guinean national identity card and passport.
The applicant made a detailed, 11 page statutory declaration on 16 February 2024. The Tribunal has considered this statement in full, but notes the following points:
·The bride price paid for the applicant was around [amount] kina, [details deleted] and [amount] kina worth of food.
·Her husband’s family have houses in [Town 1] and in Port Moresby, and her husband’s father lived mainly in Port Moresby running their [business]. Sometimes the applicant and her husband would stay in Port Moresby also, but mainly lived in [Town 1].
·Her husband started abusing her when she fell pregnant with their first child, as he believed that she’d fallen pregnant by his cousin. When he was not drunk, he would just swear at her and call her names, but when he was drunk he physically assaulted her – punching, kicking, throwing her to the ground, throwing objects in her direction. He acted like this multiple times a week. He also threatened her with a knife on multiple occasions, and threatened to kill her. He threw a knife at her back on one occasion – she still has a scar from this.
·After [Child A’s] birth he sexually assaulted her, forcing her to have sex with him when she did not want to.
·She started spending a lot of time at her parent’s house, but he would come there and take her back.
·After [Child B’s] birth he continued the abuse. Once he threw a knife at the applicant’s head while [Child B] was sitting in her lap – she still has a scar from this. After that incident she seriously feared for her own safety and that of her [children].
·After she separated from her husband he continued to pursue her. Until around mid-2022 she continued to live in [Town 1]. He would come to her parent’s house and try to take [Child A] to live with him. He constantly came to her parent’s house. Sometimes when he saw her alone at the markets he tried to grab her arms and pulled her and told her to go with him. It was clear he wanted her to go back to his house, but she didn’t want to because she feared him.
·Around mid-2022 she moved to Port Moresby and took [Child A] with her. She was tired of living her life in fear. Her parents and [some siblings] were at this point living in Port Moresby. Her parents owned a home in Port Moresby, purchased in around 2018, and they agreed to support her by renting her a place in Port Moresby. [One relative’s] family remained in the family home in [Town 1]. She didn’t move to Port Moresby earlier because she also feared husband would harm her there as he travelled between [Town 1] and Port Moresby, and she had felt safer in [Town 1] because she had her [uncle’s] house to run to and seek help.
·Her parents rented her a place in [Town 2], Port Moresby, but within a couple of weeks her husband found out where she and [Child A] were living. He came to the place they were renting and tried to pull and grab her, but she screamed and some nearby men came to help, causing her husband to run away.
·The applicant then went to live with her parents in Port Moresby, but her husband started going there regularly - 2 or 3 times a week. They argued and he tried to forcefully take her and [Child A].
·When she was in [Town 1] she made complaints to the police a couple of times, but they didn’t take it seriously and told her she needed to resolve the issues at home. Later, she didn’t ask the police for help because she knew they wouldn’t protect her.
·The applicant returned to live in [Town 1] in around December 2022. She knew it wasn’t safe but at least there she could get help from her brother and uncle. She heard rumours her husband had married another woman, but she doesn’t know if that’s true. He continued to appear at her family’s home and continued to ask for her and [Child A] to return to him. When this happened she would run to her uncle’s house; her husband used to throw stones at her and hit her with a stick when she ran. This happened 2 or 3 times a week.
·Then her uncle told her to stop going to him for help as he didn’t want her husband to cause trouble with his family, and her brother told her she cannot stay with his family anymore and that it would be best for her to return to live with her husband. She went back to Port Moresby and with her sister’s help found agents who helped people with visa applications to Australia.
·She left [Child A] in Papua New Guinea as [Child A] didn’t have a passport and the applicant didn’t have enough money to also apply for a visa for her. She left [Child A] with her parents, but in late December 2023 they told her that her husband had taken [Child A] to live with him in [Town 1].
·If the applicant returns to Papua New Guinea she would need to see her [children] and she knows that when that happens her husband would harm her. If she returns to Papua New Guinea she knows her husband will harass, seriously harm and/or kill her. She would still be considered his wife as the full bride price has not been repaid. But even if they do repay this, she thinks he would continue to pursue and hurt her because she would visit her [children].
·Her parents have told her that if she returns she must find another man to marry as they will not support her, she doesn’t want to marry a different man – she fears she would experience the same or worse violence if she marries someone else. She cannot live with her siblings either, it is not normal for a woman to live with their brothers in their culture and her sisters are married with their own families.
·The applicant also fears she will be at risk of general violence in Papua New Guinea as a single woman with no male protection. Because she does not have any qualifications or formal employment history she is scared that she will not be able to work and support herself.
·She cannot move to another part of Papua New Guinea, as she only has family in [Town 1] and Port Moresby. In Papua New Guinea you cannot just go to a different province if you are not from that province.
·The government and police in Papua New Guinea are corrupt. She cannot ask the police to help her and provide protection. She cannot afford to pay the police.
This statutory declaration was accompanied by a cover letter from her (then) legal representative which noted the representative’s observations that the applicant becomes extremely emotional when she speaks about the violence she experienced and about being separated from her [children], that the applicant finds it difficult to articulate herself in English and that the applicant finds it difficult to recall life events. The letter also makes submissions about the impact of various vulnerabilities may have on people giving evidence, including the impact of mental and emotional trauma and feelings of shame, fear and mistrust of authorities.
Visitor visa application & incoming passenger card
The Departmental file also contains a copy of the visitor visa application made by the applicant on 14 June 2023. It states that the applicant planned to visit Australia [between dates in] June 2023 as a [representative] of the Papua New Guinea [Agency 2], and that she has been employed by that [agency] since 2017. It states that the applicant intended to meet with [an international official in] Australia during her visit.
This visa application was accompanied by a letter dated 1 June 2023, on the letterhead of [an official] of the Papua New Guinea [Agency 2]. It states that the [agency] has nominated 4 officers (including the applicant) to undergo [[training] in [Country 1] funded by [an international agency in] Papua New Guinea.
The departmental file also includes a copy of the applicant’s incoming passenger card, which notes her occupation as ‘[occupation 1]’ and states she is planning to stay for 2 months for a holiday, residing at an address in [Town 3], Queensland.
Departmental interview
A Departmental officer conducted an interview with the applicant on 19 February 2024 via video link. A Tok Pisin interpreter was present, but the parts of the interview were conducted in English. The applicant’s legal representative was also present during the interview.
The Tribunal has listened to and considered an audio recording of this interview, which lasted around 2 hours. The Tribunal has considered the entire interview but notes the following points, which add to the content of the written material which was before the Department:
·The applicant’s parents, [and specified family members] remain living in Papua New Guinea. [Specified family members] live in [Town 1], [others] live in Port Moresby, her father lives in Port Moresby, her mother moves between [Town 1] and Port Moresby, and [another] lives [elsewhere].
·Both her [children] are now living with their father. As part of the arrangement when they separated, she was to keep their older [child], but since she left for Australia he took her [child] away from the applicant’s parents. He did that because remaining half the bride price needs to be sorted. [Child A] was staying with her parents in Port Moresby but he came and took her to [Town 1].
·Her parents couldn’t stop him from taking her older [child] as they have not repaid all the bride price his family paid for the marriage.
·Their marriage was a customary marriage, arranged through the families – she did not have a prior relationship with her husband. She was married in 2011 and remained married for around 4 years, living with her husband’s parents.
·Her husband had problems with drugs and alcohol. His parents tried to talk to him about this but he didn’t listen to them. He is very strong headed person. Her parents knew about the problem too. However, under their tradition because he paid the bride price she (the applicant) is more like a possession, he can do what he likes.
·When the applicant was 9 months pregnant with [Child A] her husband attacked her with a knife. She was bleeding, screamed and his parents came. Her mother in law treated her with traditional methods to heal the wound. She didn’t report this incident to the police, though there was talk among the family about it. Village leaders spoke to him.
·After [Child A’s] birth, he pressured the applicant to have sex so he could put a child in her. He insisted on sleeping with her.
·The separation followed discussions with community leaders and both sets of parents. It was agreed that her husband would take [Child B], she would keep [Child A] and the applicant’s family would repay half the bride price. There was a mutual understanding at the time, but the applicant’s husband didn’t really respect this. He has been pestering her parents for her child and pointing to the bride price; he still sees her (the applicant) as his property.
·When they separated she went and stayed with her parents in their house in [Town 1], but also stayed with her [uncles] when her husband would come looking for her. He would come to try to grab her, get her and take her away. It was a normal thing, he would come over there to see if he could force her and take her away. When she got word of him coming or saw him she would escape and go to her uncle’s place. She would hide, but sometimes he would find her and they would fight. He would also go to her uncle’s house – he knew that’s the only other place she had to go so would check there. He did this numerous times, continuously harassing her, so she moved to Port Moresby first to escape the threat from him, then decided to come to Australia.
·In Port Moresby she initially lived in a rental property, the idea was to put her somewhere secluded where he wouldn’t find her, but Port Moresby isn’t a big place, people see things and word gets around. They are from the same community. He found out where she was living and that wasn’t good for her, she was scared. So she moved to be with her parents at their place in [Town 2], Port Moresby. He knew where her parents place was and came there. He came and beat her up, tried to pull her out of the residence to take her to his house. His dad was at work when this happened, her mum at the market.
·She did go to the police, on three occasions, but they told her it was a family matter, to go back to her village and sort things out with the village elders. She doesn’t remember the precise times she went to the police.
·She is not in contact with her husband. There has been no direct communication between them since she’s been in Australia.
·Her mother has told her that when he came to take her older [child] he did mention he had another wife. Even though he is remarried, the applicant thinks he would still pursue her. He made it clear when they separated that because bride price not fully repaid, and he is the sort of person that doesn’t respect the agreement, he feels she is his possession and has the right to do what he wants.
During this interview, the departmental officer raised with the applicant the content of her visitor visa application and the accompanying letter of support. The applicant responded that she did not work. The departmental officer also raised the content of the incoming passenger card, in particular that it states the applicant is [an occupation 1]. The applicant explained that another gentleman on the plane filled out that form and she wasn’t aware of what information had been put on the card.
At the conclusion of the interview, the applicant’s legal representative made submissions addressing some of the evidence given by the applicant during the interview. The representative also made submissions about how nervous the applicant was during the interview, and stated that she is very traumatised and finds it very difficult to tell her story. The representative explained that the applicant has worked hard to tell her story to the best of her ability, but finds it very difficult to recall and explain past events, and that it is especially difficult for her to speak about her [children].
Material submitted post-interview

Following the Departmental interview, the applicant made another statutory declaration on 26 February 2024. The declaration provides additional information about the preparation of her visitor visa application, including that she never actually met the agent – rather a neighbour [named] liaised with the agent, that she was never asked to sign any documents, and she does not know what information was provided as part of her visitor visa application.
The declaration also explains that the applicant did not complete her incoming passenger card. She didn’t understand the document, so asked for help from a man sitting next to her who completed it for her. The declaration states that when she arrived in Australia she stayed with a couple in [City 1], whose details had been given to her by a friend, then with another Papua New Guinean woman in Brisbane, who referred her to [Agency 1].
Legal submissions, dated 4 March 2024, were also provided to the Department following the interview by the applicant’s (then) legal representative. These submissions provide a summary of the applicant’s claims and also set out country information concerning the risk of harm faced by women in Papua New Guinea and the availability of state protection. The submissions put forward claims on the applicant’s behalf concerning the risk of violence from her husband, the general risk of violence in Papua New Guinea (with single women being particularly at risk) and the risk the applicant will be denied the capacity to subsist because she is a single woman.
The legal submissions argue that the applicant should be considered a survivor of torture or trauma and that this needs to be taken into account in assessing the credibility of her evidence. Further, submissions are made about norms of communication in Papua New Guinea and their relevance to the assessment of credibility. Specific submissions are also made as to the application of s 36(2)(a) and (aa), including the identification of several particular social groups to which the applicant belongs.
Delegate’s decision
A delegate of the Minister for Home Affairs rejected the protection visa application on 4 April 2024.
The delegate accepted that the applicant experienced domestic violence during her marriage but, because of inconsistencies in her evidence, did not accept that the applicant’s husband and his family targeted her after their separation. The delegate did not accept that her husband had taken away [Child A], that he went after her when she lived in Port Moresby or that there is a remaining bride price amount. The delegate considered that if her husband wanted to harm the applicant, he would have done so when she was in Papua New Guinea.
The delegate considered that she would receive support from family on return to Papua New Guinea and was in a good position to seek employment, such that she did not face a real chance or real risk of harm as a single woman with children.
Claims and evidence before the Tribunal
Application for review
The applicant lodged an application for review of the refusal decision on 26 April 2024. She provided the Tribunal with a copy of the delegate’s decision record and accompanying notification letter.
The hearing – oral and documentary evidence
The applicant appeared before the Tribunal via video link on 29 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages, and the interpreter was utilised by the applicant throughout the hearing.
The applicant gave evidence about her ongoing fear she will be harmed by her husband, discussed in more detail below as relevant. No further documentary evidence was submitted, and no request was made for the Tribunal to take witness evidence.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the reasons set out below, the Tribunal considers that this matter should be remitted for reconsideration by the Department, on the basis the applicant is a refugee.
Receiving country
The applicant claims she is a citizen of Papua New Guinea and no other country. As noted above, the Departmental file includes a copy of her birth certificate, Papua New Guinean national identity card and passport. The Tribunal accepts that the applicant is a national of Papua New Guinea and that Papua New Guinea is the receiving country for the purpose of assessing her claims.
Assessment of credibility
In assessing the credibility of evidence given by the applicant, the Tribunal has had regard to the Administrative Appeals Tribunal’s Guidelines on the Assessment of Credibility, including guidance on the potential impacts of traumatic experiences on an applicant’s case. It has also had regard to the National Domestic and Family Violence Bench Book,[1] including the guidance therein on the effect of trauma on evidence / credibility.
[1] As updated June 2023, available at >
The Tribunal has also considered the written submissions made by the applicant’s former legal representative on 4 March 2014 which emphasise that the applicant has suffered significant trauma, and that her vulnerability needs to be taken into account when assessing the credibility of her evidence and claims, in accordance with Departmental Guidelines on protection visa processing. These guidelines explain that trauma can impact an applicant’s behaviour in a range of ways, including compliance with immigration laws, consistency of statements and capacity to provide testimony.
The Tribunal also notes the specific submissions made about norms of communication in Papua New Guinea, including ‘circling issues’ and ‘approaching them for all sorts of angles’ as well as providing highly contextual information.[2]
[2] The submissions cite the following source for this information: Philip Fitzpatrick, R ‘Two sides to every story: a short guide to cross-cultural awareness in Papua New Guinea (2016, Pukpuk Publications (pp.14, 17-18).
The applicant has consistently explained, at the Departmental interview, in the statutory declaration of 26 February 2024 and again at the Tribunal hearing, that she was unaware of the content of the visitor visa application submitted on her behalf, including the supporting letter. At hearing she seemed genuinely confused about the reasons for the visit set out in these documents, and explained that she came to Australia because of her fear her husband would eventually kill her, after hearing from some other women about travel to Australia. She explained that all she did was hand some money to a friend who engaged an agent on her behalf. She confirmed she had never worked for the [Agency 2].
The applicant has also consistently explained, at the Department interview, in the statutory declaration of 26 February 2024 and again at the Tribunal hearing, that a fellow passenger completed her incoming passenger card as she did not understand its contents. She gave evidence to the Tribunal that she is not [an occupation 1] and stayed with family friends in [City 1] when she first arrived in Australia. This was consistent with the information provided in her statutory declaration of 26 February 2024.
The Tribunal accepts these explanations and considers that while the visitor visa application and incoming passenger card contain incorrect information, the applicant’s evidence about her past experiences and claims for protection have been consistent since the lodgement of this visa application. The Tribunal accepts the applicant feared violence from her husband, has limited education and personal means, and relied on others to assist her to travel to Australia to escape this violence. The Tribunal has not drawn adverse inferences about the credibility of the applicant’s evidence generally because of the incorrect content in the visitor visa application (including supporting letter) and the incoming passenger card.
As noted above, the Tribunal considered that the applicant’s account of her marriage and personal circumstances, the verbal, physical and sexual violence she experienced and her efforts to avoid this harm, as given in her visa application, statutory declarations, Departmental interview and Tribunal hearing has been consistent.
The Tribunal notes that the Departmental delegate had some concerns about apparent inconsistencies between the content of the statutory declaration made on 16 February 2024 and answers given in the Departmental interview, and drew adverse conclusions about the credibility of the applicant’s evidence as a result. Having listened to the recording of that interview, the Tribunal is satisfied that some of these (such as the evidence about contact with her husband) were matters of misunderstanding or miscommunication. The Tribunal considers that the other issues identified by the Departmental delegate, such as confusion about when she sought assistance from the police, can readily be accounted for by the applicant’s evident nervousness during the interview and the impact of past trauma on the applicant’s ability to recount past events.
At hearing, the applicant was again very evidently nervous and apprehensive, but gave evidence clearly and spontaneously, in a manner which suggested to the Tribunal she was truthfully recounting her experiences.
Overall, the Tribunal accepts the applicant’s written and oral evidence as credible, and accepts her account of past experiences as given. The Tribunal has made findings of fact accordingly, as set out below.
Findings of fact – personal circumstances, history of violence, circumstances on return
The Tribunal accepts the applicant’s account of her customary marriage, the physical, verbal and sexual assault she experienced during the period she lived with her husband and her account of their separation. The Tribunal accepts that only half of the bride price has been repaid to her husband’s family and that accordingly her husband still regards her as his property.
The Tribunal accepts that the applicant’s husband continued to harass her and try to physically take her back to his home for many years following their separation, both while she lived in [Town 1] and in Port Moresby (in rental premises, then her parents’ home). The Tribunal accepts this continued until she departed Papua New Guinea for Australia. The Tribunal accepts that the applicant’s father has suggested she return to live with her husband, and that her brother and uncle in [Town 1] no longer want her to live and shelter (respectively) with them.
The Tribunal accepts that the applicant’s husband has, since the applicant came to Australia, physically taken [Child A] to live with him in [Town 1] and that her parents felt unable to stop this from occurring because of the outstanding bride price amount.
The applicant gave evidence at hearing, which the Tribunal accepts, that she has not had any contact with her husband since she came to Australia. However, her mother has been able to arrange for [Child A] to spend some time with her at the [Town 1] house. The applicant’s husband has allowed this to happen, but the applicant is unsure whether he would have the same attitude to [Child A] spending time with the applicant should she return to Papua New Guinea. The applicant gave evidence that her husband has definitely married a second wife.
The applicant gave evidence at hearing, which the Tribunal accepts, that it would take a long time for her parents to be able to pay back the remaining half of the bride price, because it was dispersed among their community and not saved or retained by her parents. The Tribunal also has doubts about their willingness to attempt to repay this amount, given the applicant’s father has encouraged her to return to her husband. The Tribunal considers that the remaining bride price will not be repaid in the reasonably foreseeable future and has assessed the risk to the applicant on that basis.
The Tribunal accepts that, despite the long period of separation and arrangements made at the time of separation, the applicant’s husband still considers that she is his property and that the marriage has not been ended or dissolved, because the bride price has not been fully repaid. The Tribunal accepts that this is still the case even though the applicant’s husband has married another woman and, in this respect, notes that polygamy is increasing in Papua New Guinea[3] and that country information cited by the applicant’s former legal representative indicates that the risk of domestic violence can in fact escalate where a husband marries a second wife.[4]
[3] 'Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024 (p.489); 'Polygamy is spreading in PNG', Devpolicy, 06 February 2024; 'State of play for Pacific
[4] ‘Bashed Up: Family Violence in Papua New Guinea’, Human Rights Watch, 3 November 2015; ‘Special Rapporteur on Violence against women finalises country mission in Papua New Guinea’, Office of the High Commission, UN Human Rights Office, 26 March 2012.
The applicant was unable to state with certainty where she would seek to live on return to Papua New Guinea, because her husband has homes in both [Town 1] and Port Moresby and because she now lacks support from her father, brother and uncle. She appeared very fearful and apprehensive when this issue was raised by the Tribunal. However, the Tribunal considers that she would have little choice but to return to her home area of [Town 1]. The Tribunal accepts that wherever the applicant lives in Papua New Guinea, she would seek to spend time with her [children], despite the risk to her safety.
Relevant country information
Violence and discrimination against women, gender roles
Papua New Guinea has been described as one of the most dangerous places in the world to be a woman or a girl.[5] Country information before the Tribunal indicates that violence against women and girls in Papua New Guinea (referred to there as Gender-based Violence (GBV) and Family and Sexual Violence (FSV)) is endemic,[6] with the country having some of the highest rates of such violence in the world.[7] Women are regularly subjected to extreme physical and sexual violence, sometimes resulting in death, often with little or no consequence for perpetrators.[8]
[5] 'Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024 (p.489).
[6] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.18).
[7] 'Addressing Gendered Violence in Papua New Guinea: Opportunities and Options', United States Institute of Peace, 7 March 2024 (p.3); 'Intimate partner violence in Port Moresby: drivers and outcomes', Devpolicy, 18 January 2024; ‘Study finds PNG women with more wealth, education experience higher levels of domestic violence’, ABC News, 23 February 2023; 'Human Rights
[8] ‘Amnesty International Report 2020 – Papua New Guinea’, Amnesty International.
Almost all women and girls in Papua New Guinea will be subjected to violence at some point during their lives, and this high risk of violence exists regardless of social status.[9] Women living in the Highlands provinces, as is the case for this applicant, are at particular risk,[10] and women under 40 years of age may face a higher risk than older women.[11] One survey covering the years 2016 – 2018 indicated that 58% of women aged 15 to 49 had experienced physical violence since the age of 15, including 48% in the last 12 months; 28% had experienced sexual violence; and 18% had experienced physical violence during pregnancy.[12]
[9] '2023 Country Reports on Human Rights Practices - Papua New Guinea', US Department of State, 22 April 2024 (p.17); DFAT Country Information Report – Papua New Guinea, 6 September 2022 (paras 3.18, 3.19); 'Intimate partner violence in Port Moresby: drivers and outcomes', Devpolicy, 18 January 2024.
[10] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.19).
[11] 'Intimate partner violence in Port Moresby: drivers and outcomes', Devpolicy, 18 January 2024.
[12] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.18).
These high rates of violence are underpinned by social and cultural factors, including the view that FSV is private matter; traditional values and gender roles which restrict participation in the community and workforce; cultural practices surrounding marriage (e.g. bride prices and polygamy); and the perception that women can be ‘owned’ and traded.[13] These factors contribute to gender based violence in the home, as well as in community and institutional settings.[14]
[13] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (paras 3.19, 3.20, 3.22).
[14] ‘Special Rapporteur on Violence against women finalises country mission in Papua New Guinea’, Office of the High Commission, UN Human Rights Office, 26 March 2012.
Papuan New Guinean society is based on patriarchal organisation, with men as the ultimate authority in both the public and private domains. Only 1% of women in Papua New Guinea report being the main decision-makers within their home.[15]
[15] ‘Addressing Gendered Violence in Papua New Guinea: Opportunities and Options', United States Institute of Peace, 7 March 2024 (p.14).

Gender based violence is considered private by many Papua New Guineans, an aspect of a married woman’s life not to be discussed publicly, and is socially and culturally sanctioned.[16] One report, focused on Hela and Morobe Provinces, explains that a woman’s social value derives from their economic and reproductive contributions to their clan and their husband’s clan, and from their obedience to male family members. GBV is accepted as a way to discipline women who fail to conform to ideals of virtuous womanhood.[17]
[16] ‘Addressing Gendered Violence in Papua New Guinea: Opportunities and Options', United States Institute of Peace, 7 March 2024 (p.14); ‘Exploring the Role of Men and Masculinities in Papua New Guinea in the 21^st Century: How to Address Violence in Ways that Generate Empowerment for Both Men and Women’ Richard Eves, Caritas Australia, January 2006 ( accessed 23 July 2024) (p.12); ‘Special Rapporteur on Violence against women finalises country mission in Papua New Guinea’, Office of the High Commission, UN Human Rights Office, 26 March 2012.
[17] ‘Addressing Gendered Violence in Papua New Guinea: Opportunities and Options', United States Institute of Peace, 7 March 2024 (pp.14-15); ‘Exploring the Role of Men and Masculinities in Papua New Guinea in the 21st Century: How to Address Violence in Ways that Generate Empowerment for Both Men and Women’ Richard Eves, Caritas Australia, January 2006 ( accessed 23 July 2024).
While some women do hold senior positions in business, professional spheres and the civil services, gender discrimination exists at all levels in Papua New Guinea and cultural barriers significantly limit female participation.[18] Women in Papua New Guinea continue to face severe inequality in all aspects of social, cultural, economic and political life.[19] The United Nations Gender Equality Index, which measures gender based disadvantage in terms of reproductive health, empowerment and participation in the labour market, ranked Papua New Guinea at 0.814 in 2021 – with the value of 0 meaning men and women fare equally and the value of 1 meaning one gender fares as poorly as possible in all measured dimensions.[20] Women face discrimination in accessing certain occupations, in the workplace, in relation to property rights and inheritance.[21]
[18] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.17).
[19] '2019 Country Reports on Human Rights Practices - Papua New Guinea', US Department of State.
[20] United Nations Human Development Reports – Gender Inequality Index ( accessed 23 July 2024).
[21] '2023 Country Reports on Human Rights Practices - Papua New Guinea', US Department of State, 22 April 2024, (p.19); 'Workplace harassment of women in Port Moresby: results of a survey', Devpolicy, 4 December 2023; 'Freedom in the World 2023 - Papua New Guinea', Freedom House, undated, accessed 23 July 2024.
It remains common for a ‘bride price’ to be paid to a woman’s family to the groom or his family on marriage, which can lead to a view that the husband ‘owns’ his wife and to a sense of entitlement to a woman’s servitude, labour, body and obedience.[22] Further, the obligation for this bride price to be repaid on breakdown of a marriage can act as a barrier or deterrent to women leaving relationships, including because the woman’s family may encourage them to remain with their husband to avoid this financial obligation.[23]
[22] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.20); ‘Full price, fully body: norms, bride price and intimate partner violence in highlands Papua New Guinea’, Richard Eves (2018) 21(12) Culture, Health and Sexuality 1367, 1374.
[23] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.20); '2023 Country Reports on Human Rights Practices - Papua New Guinea', US Department of State, 22 April 2024 (p.17).
The social and cultural understanding of women as property is also demonstrated by the fact that women can be given as compensation to settle disputes between clans, are used to promote peace through obligatory marriage exchanges between clans, and are sometimes forced to marry their rapists to normalise relationships between families and clans.[24]
[24] ‘Violence Against Women in Melanesia and East Timor: Building on Global and Regional Promising
Child marriage is common, particularly among girls, and polygamous marriages are increasingly common (19% of married women in 2016).[25]
State protection
[25] 'Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024 (p.489); 'Polygamy is spreading in PNG', Devpolicy, 06 February 2024; 'State of play for Pacific
There have been efforts taken by Papua New Guinean authorities to address FSV in recent years, including through the establishment of Family and Sexual Violence Units (FSVUs) within the police in each province; the introduction in 2013 of the Family Protection Act, which provides for a framework of protection orders;[26] and amendments to this legislation in 2022 to create new offences and expand definitions of assault and abuse.[27]
[26] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (paras 3.18, 3.22, 3.23).
[27] ‘Family Protection (Amendment) Act 2022’, Papua New Guinea Parliament, 20 January 2022;
However, the police response to GBV in Papua New Guinea remains inadequate.[28] The Royal Papua New Guinean Constabulary (RPNGC) lacks the capacity and resources to respond to crime generally, however their response to GBV is particularly lacking.[29] The PRNGC have stated that they cannot keep women and children safe, and that they lack resources to thoroughly investigate claims of GBV.[30] There are not enough FSVUs and officers to address the scale of the problem, and implementation of the Family Violence Protection Act remains weak, with relatively few orders issued and a lack of inclination and resources within the RPNGC to enforce them.[31]
[28] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.21).
[29] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.21).
[30] '2023 Country Reports on Human Rights Practices - Papua New Guinea', US Department of State, 22 April 2024 (p.17).
[31] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (paras 3.22, 3.23).
Most cases of GBV are not reported to the authorities.[32] There are a range of reasons for this but, for example, many women are financially dependent on their husbands, which can make reporting violence difficult.[33]
[32] 'Inquiry into gender equality policies and institutions, gender-based violence and sorcery accusation related violence', Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment, October 2023 (p.14); DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.21).
[33] 'Intimate partner violence in Port Moresby: drivers and outcomes', Devpolicy, 18 January 2024; ‘Addressing Gendered Violence in Papua New Guinea: Opportunities and Options', United States Institute of Peace, 7 March 2024 (p.8).
Even where cases of GBV and FSV are reported, the laws cited above are rarely enforced.[34] Criminal charges against perpetrators are rarely pursued by the police and prosecutors, even in the most serious cases such as attempted murder, serious injury or repeated rape.[35] Further, information before the Tribunal suggests that many women withdraw their cases due to threats from their partners and families.[36]
[34] 'Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024 (p.488); '2023 Country Reports on Human Rights Practices - Papua New Guinea', US Department of State, 22 April 2024 (pp.17-18); 'Freedom in the World 2024 - Papua New Guinea', Freedom House.
[35] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.21).
[36] 'Intimate partner violence in Port Moresby: drivers and outcomes', Devpolicy, 18 January 2024.
Only a tiny proportion of perpetrators are arrested or successfully prosecuted, and even clear cut cases may not result in convictions.[37] Of the 30 028 cases reported to FSVUs between January 2021 and April 2023, only 1304 arrests were made (4%) and there were only 156 convictions (0.5%).[38]
[37] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.21).
[38] 'Inquiry into gender equality policies and institutions, gender-based violence and sorcery accusation related violence', Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment, October 2023 (p.14).
Police responses are arguably influenced by the view that FSV is a private matter, and by the fact that levels of FSV among police officers themselves are high.[39] Police are generally poorly trained, particularly on human rights, and some are disinclined to act in response to some GBV offences due to sympathy for the alleged perpetrators.[40]
[39] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.22); ‘Addressing Gendered Violence in Papua New Guinea: Opportunities and Options', United States Institute of Peace, 7 March 2024 (p.11).
[40] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 5.5).
Overall, credible sources before the Tribunal assess that state protection is unlikely to be available to victims of GBV.[41] Perpetrators accordingly act with impunity.[42]
[41] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.19); 'Human Rights Watch World Report 2023', Human Rights Watch, 12 January 2023 (p.474).
[42] 'Inquiry into gender equality policies and institutions, gender-based violence and sorcery accusation related violence', Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment, October 2023 (p.14).
Further, adequate support services are not available for victims of GBV.[43] There is a Family Support Centre attached to a general hospital in each province to provide assistance to people after suffering FSV, but their services are insufficient.[44] Similarly, while women’s refuges do exist in Papua New Guinea, they are insufficient for the levels of FSV and GBV that are occurring.[45]
Internal relocation
[43] 'Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024 (p.488).
[44] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.24).
[45] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 3.25).
Internal relocation occurs within Papua New Guinea, with people regularly moving to cities for economic opportunities, to escape violence or due to natural disasters.[46] For example, as much as 50% of Port Moresby’s population is comprised of internal migrants residing in informal settlements.[47]
[46] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 5.15).
[47] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 5.15).
However, DFAT reports that some people struggle to relocate within Papua New Guinea to avoid issues such as GBV because Papua New Guineans traditionally rely on family and tribal networks for support. Lack of resources and language difficulties can present problems, especially for single women, even more so for those with children.[48] Single women are also at risk of assault and sexual violence, at risk from the generally high rates of violence crime in Papua New Guinea (particular in urban centres), and may have difficulty earning an income.[49]
[48] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 5.16).
[49] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 2.26); DFAT Travel Advice ‑ Papua New Guinea, as updated 30 May 2024 ( accessed 30 July 2024); ‘Bashed Up: Family Violence in Papua New Guinea’ Human Rights Watch, 3 November 2015.
Those who relocate are often recognised in their new home due to the presence of diaspora in other parts of Papua New Guinea and the take up of mobile phones / social media, and this would typically be communicated to their place of origin. DFAT assesses that this may present a continuing threat to those attempting to escape violence.[50]
[50] DFAT Country Information Report – Papua New Guinea, 6 September 2022 (para 5.16).
Assessment of refugee criterion - s 36(2)(a)
Having regard to the findings of fact and country information set out above, the Tribunal is satisfied that there is a real chance the applicant will be subjected to harassment as well as verbal, physical and sexual violence by her husband on return to Papua New Guinea, as she has been in the past. In reaching that finding, the Tribunal has placed weight on the fact that her husband considers that they remain customarily married (due to the outstanding repayment of half the bride price) and perceives the applicant as being his property, that they share two children currently in his custody, that he continually harassed the applicant for many years following their separation until she left the country and that her husband has not accepted previously agreed arrangements about the separation custody of the children. The Tribunal has also placed weight on the fact the applicant no longer has the support of her male relatives (father, brother, uncle) as she did in the past, which provided her with some degree of protection. The Tribunal is satisfied that this treatment would constitute serious harm.
Having regard to the country information cited above and the terms of s 5L of the Act, the Tribunal is satisfied that the applicant is a member of a particular social group, being women in Papua New Guinea. Members of this group share the characteristic of their gender, a characteristic which the Tribunal considers distinguishes the group from society. The applicant shares this characteristic, and it is not a fear of persecution. Further, the Tribunal is satisfied that the applicant’s membership of this particular social group would be the essential and significant reason she would be subjected to harm.
In reaching this conclusion, the Tribunal has carefully considered the motivation of the persecutor[51] in light of the applicant’s evidence and the country information cited above. Country information makes clear the violence against women perpetrated by their husbands is very common and widespread in Papua New Guinea and, significantly, is underpinned by notions of women as being ‘owned’ by their husbands and families, gender based power inequalities reflected in private and public spheres, and social acceptance of violence against women. Consistent with this, the applicant’s repeated evidence was that her husband viewed her as his property and that her parents felt they had to give [Child A] to him as the applicant’s bride price had not been fully repaid. While the Tribunal has not discounted some element of more personal motivation, it is satisfied that the essential and significant reason the applicant’s husband would harm her is her membership of the particular social group of women in Papua New Guinea.
[51] Ram v MIEA (1995) 57 FCR 565 at 568; Applicant A v MIEA (1997) 190 CLR 225 at 284.
The Tribunal is satisfied that the persecutory conduct would involve systematic and discriminatory conduct, in the sense of deliberate, targeted and intended behaviour, rather than random or accidental behaviour.[52]
[52] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95]-[99]; SZTEQ v MIBP (2015) 229 FCR 497 at [72].
The Tribunal accepts that the applicant would live in [Town 1] on return to Papua New Guinea, and that her husband would become aware of her presence there, such that a real chance of serious harm exists. Given the applicant would be a single woman on her own without familial support (and possibly with one or both of her children), and noting the country information on internal relocation cited above (at paragraph ‎68), the Tribunal has doubts about the possibility safe human habitation in other areas of Papua New Guinea.[53] However, in any event, having regard to country information set out above at (paragraph ‎69) and the applicant’s past experience of being located by her husband in Port Moresby, the Tribunal considers the applicant’s return would be communicated to her husband even if she were to relocate to another part of Papua New Guinea, and that the applicant would seek to visit her children, exposing her to further risk. According, the Tribunal considers that the real chance of persecution faced by the applicant relates to all areas of Papua New Guinea.
[53] FCS17 v MHA (2020) 276 FCR 644 per White and Colvin JJ at [81].
Having regard to the country information set out above, the Tribunal considers that effective protection measures would not be available to the applicant, such that s5J(2) does not apply. The Tribunal also considers that there are no reasonable modifications of behaviour available to the applicant which would result in her avoiding the real chance of persecution, such that s 5J(3) also does not apply. While the applicant may be able to reduce the risk of being harmed by her husband by not going to visit her children as she states she would, the Tribunal would not consider this a reasonable step in the circumstances, having regard to the ages of the children and the applicant’s concerns for their welfare.
Given the above findings, the Tribunal has not considered it necessary to make findings on the applicant’s other claims about the general risk of violence and capacity to subsist.
For the reasons given above, the Tribunal is satisfied that the applicant is a refugee as that term is defined by the Act. There is no evidence to suggest the applicant has a right to enter and reside in any other country, and the Tribunal is satisfied that s 36(3) of the Act does not apply.
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Stefanie Memmott
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.
…

women in 2024', The Interpreter (Lowy Institute for International Policy), 8 March 2024.

Watch World Report 2023', Human Rights Watch, 12 January 2023 (p.474).

'Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024 (p.488).

Developments 2008', Australian Government, Australian Agency for International Development (AusAID) - Office of Development Effectiveness (ODE), 1 December 2008 (p.19); 'Papua New Guinea: Violence Against Women Accused of Sorcery', Human Rights Watch, 10 June 2021; ‘Addressing Gendered Violence in Papua New Guinea: Opportunities and Options', United States Institute of Peace, 7 March 2024 (p.8).

women in 2024', The Interpreter (Lowy Institute for International Policy), 08 March 2024.

'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023 (p.292).

[2024] AATA 4176

30 July 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction