2410310 (Refugee) [2024] ARTA 494 (22 October 2024)
Decision and			
Reasons for Decision
Respondent:	Minister for Home Affairs
Tribunal Number:	2410310
Tribunal:	General Member M Bailey
Date:	22 October 2024
Place:	Brisbane
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 meets the following criterion:
•	s 36(2)(a) of the Migration Act

Statement made on 22 October 2024 at 8:38am

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – tribal violence – members of husband’s tribe killed and houses burned – particular social group – separated women – physical, sexual and psychological abuse during childhood and marriage – extra-marital affairs – fear of harm from brother, husband and brother-in-law – general gender-based violence – physical and mental health and treatment – regular contact with husband to speak with children – country information – patriarchal cultural and societal traditions, prevalence of gender-based violence and inadequate police responses – modification of behaviour not reasonable – decision under review remitted

LEGISLATION 
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(b), (4), 5L, 5LA, 36(2)(a), 65 
Migration Regulations 1994 (Cth), Schedule 2

CASE
Chan Yee Kin v MIEA [1989] HCA 62

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
1.  	On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.   
APPLICATION FOR REVIEW
2.  	This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 19 April 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
3.  	The applicant applied for the visa on 8 November 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.
4.  	The applicant appeared before the Tribunal on 21 August 2024 (in person) and 12 September 2024 (via video conference) to give evidence and present arguments. The Tribunal also received oral evidence at the first hearing from the applicant’s Counsellor from [Organisation]. 
BACKGROUND
5.  	The applicant, a [Age]-year-old female, last arrived in Australia [in] August 2023 on a Visitor (subclass 600) visa. As outlined in the delegate’s refusal decision, she had travelled to Australia on 2 previous occasions as the holder of a Visitor visa: 
i.	Arriving [in] December 2016 and departing [in] January 2017
ii.	Arriving [in] December 2022 and departing [in] January 2023
6.  	The applicant provided several identity documents as part of her protection visa application, including a copy of the biodata page of her current Papua New Guinea (PNG) passport. 
7.  	The delegate accepted that the applicant is a citizen of PNG and there is no information before me to the contrary. I find that the applicant is a citizen of PNG, and that PNG is her receiving country for the purposes of assessing her claims for protection. 
Evidence before the Department
Protection visa application
8.  	According to the protection visa application, the applicant was born and resided in [District], Enga Province until early 2004. Between 2004 until September 2022, she resided in Port Moresby and from September 2022 until her departure for Australia in August 2023, she resided in [Town] and [District] in Enga Province.
9.  	She married in July 2007 and has [biological children]: [genders and ages]. She also has one adopted [child], currently aged [Age] years. Her children are living with her mother and husband in [District].
10.  	She completed high school in [Town], Enga Province in [Year]. Between [Year] and [Year] she completed a Diploma in [Subject] at [University] in Port Moresby. She completed a Bachelor in [Related subject] at the [University] between 2015 and 2016 and has since undertaken further specialist training in [specialisation]. Since June 2009 she has been employed in [occupation] roles at several [workplaces] in PNG including the Port Moresby [Workplace] and [Workplace] in Enga Province. 
11.  	Regarding her claims for protection, she stated in summary:
i.	In October 2021, tribal war began between her father’s tribe, [Tribe 1], and the [Tribe 2] over a land dispute. Her father’s cousins, who were involved in the fighting, sought refuge at her family home. This caused her to become a target to the enemy tribe.
ii.	In August 2022 her husband’s tribe, the [Tribe 3] from [Village] in [Town] district, were involved in a ‘political war’ which resulted in the burning of villages and the loss of many lives. Most of [Village] was destroyed and the lives of her husband, herself and their children were under threat.  
iii.	She has experienced many traumatic events, including during childhood, such as physical and sexual abuse, psychological trauma in her marriage and family violence. As a female in PNG, she is vulnerable and at risk of petty crime, robbery, tribal enemies and accusations of sorcery. 
iv.	She details several incidents of childhood sexual abuse and attempted rapes during high school. On 19 August 2006 she was raped by her then boyfriend (who subsequently became her husband). She did not report this incident because she feared the consequences of it becoming public.
v.	She fears harm from her brother. In 2014 she and her mother reported her brother’s threats to the police in Port Moresby. The police tried to arrest her brother but he escaped and remains a threat to her and her mother.
vi.	In 2015, her husband and his brother were arrested. Due to tribal pressure and her need for her husband’s support, she agreed to resolve the matter outside of court but they can still harm her when the opportunity arises.
vii.	She cannot return to PNG because of ‘tribal enemies, political enemies, killing and rape seasons, family violence and tensions and no justice or security promised by the government’. The tribal war continues and puts her life at risk. Her husband’s treatment of her causes her psychological trauma and stress and has driven her to have extra-marital affairs. Her husband does not know about this, but she would be killed instantly if he or his relatives found out. Her brother is also a threat to her. He comes to her house in Port Moresby to threaten her and steal household goods. As a female without male protection, there is nowhere safe for her to live in PNG and the police cannot offer her protection.  
12.  	The applicant submitted to the Department of Home Affairs (Department) copies of various supporting documents including educational and employment documents, photos, and the following:
i.	Letter dated 23 August 2023 from her husband stating that he is seeking protection for his wife and children as their lives are in danger due to ongoing tribal and political conflicts. His village has become a battleground for multiple tribal wars and he and his family are being targeted. In 2021, he left his job in Port Moresby and relocated his family to Enga Province. However, they can no longer reside there due to tribal warfare. Before ‘reuniting with his children and wife’ he must ensure the safety of his elderly parents.
ii.	Extracts of 3 emails dated 15 August 2013, 22 August 2013 and 9 September 2013 between the applicant and ‘Dr JH’: in the initial email the applicant states that she hates her husband because he has been physically abusive toward her while she was pregnant. She stated that this is ‘the fourth time he is hitting me’ and refers to having a black eye and it being ‘a big blow’ in her life. She states that she needs to transfer to ‘[Workplace]’ to work and divorce her husband and requests Dr JH’s advice. In response Dr JH advises her to go to the police, to which the applicant responds that for her children’s sake she has to forgive him and ‘be submissive’ and wait until the children are older. [Deleted].
Protection visa interview
13.  	The applicant attended an interview with the Department on 6 February 2024. Relevant evidence from the interview, as outlined in the delegate’s refusal decision, is summarised below:
i.	Her father is deceased. Her mother is living in a village in [District], with her husband and children. She contacts them regularly. She has 2 brothers and one sister. Her adopted child is her brother’s [child].
ii.	She met her husband in around [Year], while studying at the [University]. His younger brother did not approve of the applicant’s marriage. She referred to an incident in 2015 where her brother-in-law beat her after she had an argument with her husband. She reported this incident to the police who felt sorry for her, but her brother-in-law ran away. 
iii.	Asked about the conflict involving her husband’s tribe, she stated that neither she or her husband lived in [Village] and her husband had no direct involvement in the fighting. However, he is at risk because of his membership of the tribe and tribal affiliations are widely known.
iv.	She referred to an incident in July 2023 when she was stopped while driving to work in [Town] by 2 men with painted faces who were checking for tribal enemies. They asked her for money. She gave them a chocolate bar and sped away. They know her identity and could harm her. From June 2023 the tribal conflict escalated and she could no longer access the highway to travel to work. She tried to secure a transfer back to the Port Moresby [Workplace] but was not successful.    
v.	Regarding the threats from her brother, she stated that he is jealous of her because she is educated and successful. In [Year] he attacked her while she was pregnant with her second child. After her father’s death, her brother physically assaulted their mother while she was living in the village. She brought her mother to Port Moresby and in 2014 he threatened her and her mother. She filed a police report but the police ‘gave up because they ran out fuel’ while chasing after her brother. The last contact she had with her brother was in 2021 or 2022 in Port Moresby. He brought his new wife, whom he had beaten, to her house and asked for help in taking her to the hospital. She has received no further contact from him since that time.
vi.	Asked about the letter from her husband dated 23 August 2023 and how this sits with her claim that he does not support her, she stated that he did not want to write the letter but she asked him to do so if he cared for their children.  
Delegate’s decision
14.  	The delegate accepted that the applicant is a member of the [Tribe 1] and had experienced incidents of sexual abuse during her childhood. Due to inconsistencies and other concerns with her evidence, the delegate did not accept that the applicant had been subjected to domestic violence from her husband, had been attacked or threatened by her own brother or her brother-in-law or had come to the adverse interest of any rival tribes. 
15.  	The delegate accepted that the applicant feels vulnerable as a woman in PNG. However, on the basis that she is married and has the support of her husband, the delegate found there to be no real chance of harm for this reason. 
16.  	Regarding the tribal conflict in [District], the delegate referenced recent country information indicating that a cease-fire has been negotiated and rival groups have pledged to end the conflict. The delegate found there to be no real chance of harm due to the tribal conflict in Enga Province.
17.  	The applicant’s return to PNG from Australia in January 2023 was also considered by the delegate to undermine her claims to hold a genuine fear of harm in PNG. 
Evidence before the Tribunal
Pre-hearing evidence
18.  	The applicant submitted to the Tribunal a statement dated 13 August 2024 (Pre-hearing statement); a screenshot of messages from WhatsApp; a letter dated 13 May 2024 from the [Clinic] ([Clinic] letter); and letters dated 15 May 2024 and 9 August 2024 from a Counsellor at [Organisation] ([Organisation] letters).
19.  	A summary of relevant information from the Pre-hearing statement is below:
i.	She has experienced long-term domestic violence from her husband, including physical and psychological abuse. 
ii.	She met her husband in late [Year] and was raped by him [in] his older sister’s house. She was in college at the time and felt ‘completely hopeless seeking help’. It was a ‘devastating feeling’ and she felt like her world was over. Her husband took advantage of her weakness and continued to subject her to sexual violence.
iii.	Her husband was physically abusive toward her when her first child was one year old and she was pregnant with their second child. The physical violence was triggered by arguments over money or family matters. In [Year] her husband physically assaulted her when she was 2 months’ pregnant. They had a big family gathering to solve the issue. She wanted to leave the marriage but her family and tribe did not support this and she felt that she had no option but to stay. 
iv.	She started having affairs with other men after the incident in which her brother-in-law beat her while her husband stood by and did nothing to protect her. Her husband does not know about the affairs. If he were to find out, this would be a ‘death threat’ for her. She had to run away as other men were threatening her.
20.  	The WhatsApp screenshot shows undated messages between the applicant and ‘Mr SK’ in which Mr SK threatens that he is capable of ‘ending her family’ and warns her not to underestimate him. 
21.  	The [Clinic] letter states that while attending the clinic between October and December 2023, the applicant disclosed a significant long-term history of gender-based violence from her husband, brother-in-law and brother. She has visible scars [due] to an incident of violence. In the author’s opinion, the applicant’s ‘presenting symptoms and psychological state were entirely consistent with someone who has experienced’ recurrent trauma as disclosed.  
22.  	The [Organisation] letter dated 9 August 2024 states that the applicant was referred for counselling in September 2023, was placed on a waitlist, and commenced counselling in April 2024. The applicant has reported various symptoms consistent with trauma, including intrusive memories, flashbacks, depression and difficulty sleeping and concentrating. 
23.  	The [Organisation] letter dated 15 May 2024 states that during the course of 3 counselling sessions, the applicant has disclosed that she left PNG due to historical abuse and fear for her safety. She reported that her husband subjected her to psychological, financial, sexual and physical abuse. She engaged in extra-marital affairs and is very fearful of the consequences if her husband’s tribe were to become aware of this. One of the men with whom she had an affair has threatened to kill her and her family because she refused to marry him.  
Oral evidence at Tribunal hearings
24.  	The applicant confirmed that her mother continues to reside in [District] and is caring for her adopted [child]. Her father passed away in around 2012. Her husband and biological children live in the same village as her mother but in a separate house. One of her brothers and her sister also live in [District]. A second brother is currently living in Port Moresby. 
25.  	Regarding her relationship with her husband, she met him in Port Moresby while she was at university. Her husband was working in a [work sector] role after completing university studies in [Country]. She explained that she recalls the exact date in 2006 that he raped her because this was the day she lost her virginity before marriage, which was a significant matter in her culture. She did not tell anyone, including her family, about the rape because of the stigma and fear. She continued the relationship with her husband after this incident because she felt ‘useless’. They married in Port Moresby in July 2007 and his family paid a bride price of 30,000 PNG Kina (approximately $11,500 AUD) to her family. 
26.  	Her husband was physically abusive toward her following the birth of her first child [until] the birth of her fourth [child]. During the period they lived in Enga Province from late 2022, he was no longer physically abusive but at times would get angry and aggressive. She never attended the hospital for medical treatment because her injuries did not require hospital treatment and she did not want anyone at the [hospital] to know about the abuse. 
27.  	She reported her husband and his brother to the police in 2015 but does not have any documentary evidence of this. When asked about the incident leading to this police report, she stated that her husband had stood by and allowed his brother to physically assault her. Her brother-in-law initially fled before the police could arrest him but returned when he learnt that her husband had been detained at the police station. Their tribe then became involved and pressured her to drop the complaint. She eventually agreed because she was under a lot of pressure with her [studies] and needed her husband’s support with the children. 
28.  	Asked about the emails with Dr JH, she stated that he is an old friend from school and at that time was working as a doctor at the [Town] district hospital, also known as ‘[Name]’. She emailed him after an incident of domestic violence from her husband as she didn’t know who else to turn to. When she was preparing her protection visa application, she searched through her emails for supporting evidence and located this email exchange.
29.  	In September 2022 she moved to [Town] by herself. Her husband and children remained in Port Moresby until December 2022. Asked why she moved to [Town] in September 2022, she stated that she was trying to find a way to separate from her husband and was worried that her extra-marital affairs would become known; she thought she may have some protection if she moved to her mother’s village. She told her husband that she was moving for work reasons. When he moved to [Town] a few months later, she felt that she had no choice but to continue the relationship because of the children. 
30.  	Asked why she and her family would choose to move to Enga Province if the situation was dangerous due to tribal conflict, she stated that the conflict was occurring in a different area to where her mother lived in [District]. She initially thought the conflict would resolve rather than escalate. Asked why she and her family did not return to Port Moresby when the conflict did escalate, she stated that her husband did not want to move. She agreed that the situation in Enga Province has improved following the cease-fire but stated that there is always a risk. 
31.  	Asked about the letter from her husband dated 23 August 2023, she stated that the situation in Enga Province at that time was very risky because of the tribal fighting. She suggested to her husband that they move away but he refused so she saw this as an opportunity to leave. Her husband did not want her to leave and only agreed to write the letter in exchange for sex. When asked whether her husband knew that she was coming to Australia to apply for protection, she stated that he did but he believed this was for reasons of the tribal conflict; that she would not stay away for long and would return for the children.   
32.  	I discussed with the applicant that I was having difficulty understanding why she would ask her husband to write this letter if she was fearing harm from him. She responded that she needed his approval to leave PNG and it was only because of the tribal conflict that he agreed to this. Asked why she submitted it in support of her protection visa application given it appears to undermine her claims to fear harm from her husband, she responded that she was asked to provide documentary evidence and thought this would assist in supporting the tribal conflict in Enga Province.
33.  	She confirmed that she remains in regular contact with her husband so that she can speak with her children. He wants her to return to PNG, but she has told him she is not coming back. She remains legally married to her husband but considers them to be separated.  
34.  	Regarding the extra-marital affairs, she stated that this began in 2016 while she was living in Port Moresby. The incident in 2015 involving her brother-in-law and husband had significantly affected her and she described that her husband had ‘lost her’ due to this. She had affairs with 4 or 5 men. Some of these were one-off affairs and some were more regular. She only received threats from one of these men, Mr SK, with whom she commenced a relationship after moving to [Town] in September 2022. She initially thought he was single but later learnt he had a wife. Their relationship continued until her departure for Australia in August 2023. While she was in PNG, he was threatening to expose the relationship to her husband and continued to send threatening messages to her in Australia. 
35.  	Asked about the timing of the WhatsApp messages, she recalled that these were received in around February or March 2024, following her interview with the Department. These were the last messages received from Mr SK and they are no longer in contact. She confirmed that her husband is not aware of her relationship with Mr SK.
36.  	I discussed with the applicant that she did not raise with the Department any claims to have received threats from Mr SK. Asked why she did not provide this information to the Department, she stated that she referred to having extra-marital affairs in her protection visa application but was not asked about this at her interview with the delegate. I raised with the applicant that she was asked by the delegate to clarify who she feared harm from but did not mention any threats from Mr SK. 
37.  	When asked what she thinks her husband would do if he were to learn about the affairs, she responded that he would ‘throw her out in public’, which she clarified to mean that he would make it known to his tribe who would harm her and he would not protect her. Her main fear relates to what her husband and his tribe would do if they were to learn about her extra-marital affairs. She wrote her protection visa application while staying at the home of distant relatives of her husband in Australia and accidentally left a copy of the application on their computer. They told her husband about her claim to have had extra-marital affairs and he asked her whether this was true. She denied it and he said he believed her but she thinks he may still be suspicious. Asked whether his relatives also told her husband that she had raised claims of domestic violence by him, she stated that she doesn’t think he was made aware of this.
38.  	Regarding her previous travel to Australia, she stated that between December 2016 and January 2017 she came with her children for a holiday; she did not know about a protection visa at that time. Between December 2022 and January 2023, she came by herself to visit friends. During this trip she learnt about a protection visa but wanted to bring her children to Australia. When she departed for the final time, her husband would not agree to the children coming with her.
CONSIDERATION OF CLAIMS AND EVIDENCE
39.  	The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in 
s 36(2)(aa) of the Act. For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
Criteria for protection visa and mandatory considerations
40.  	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. Relevant provisions of the Act are extracted in the attachment to this decision.
41.  	In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ 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.
Factual findings
42.  	In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.  I have also had regard to the Tribunal’s Guidelines on Vulnerable Persons which define a vulnerable person as a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed. Relevant factors can include a person’s experiences of physical or psychological abuse and trauma, including victims of physical or sexual violence. 
43.  	In assessing the applicant’s claims, I have taken into account that she was not represented in relation to her primary application to the Department or her review application and, as discussed below, has experienced physical and sexual violence. While I have concerns with some of her protection claims, I am satisfied that her claims relating to domestic violence from her husband are overall credible. These claims have remained generally consistent and are supported by the email correspondence with Dr JH and the information in the [Clinic] and [Organisation] letters. 
44.  	I acknowledge that the supporting letter from the applicant’s husband appears inconsistent with her domestic violence claims. However, I am prepared to accept that she obtained this letter to convince her husband that she was leaving PNG to seek protection for reasons of the tribal conflict and submitted it to the Department to support that aspect of her protection claims without understanding its significance to her domestic violence claims. In the circumstances, I have placed no adverse weight on this letter in assessing the credibility of her claims to have experienced domestic violence from her husband.
45.  	The applicant’s claims are also consistent with a range of independent country information regarding the prevalence of domestic and gender-based violence in PNG, as outlined below. 
46.  	Various sources report that violence against women in PNG is very common, with PNG having amongst the highest rates of gender-based violence in the world. Sources report that almost all women and girls in PNG will be subject to violence at some point during their lives. The most recent PNG Demographic Health Survey (2016-18) found that 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15. It has been reported that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of gender-based violence every year. 
47.  	According to a 2023 Parliamentary Committee Inquiry on Gender Equality, gender-based violence is increasingly exponentially. DFAT 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. 
48.  	According to a report by the US Department of State, gender-based violence including sexual violence, gang rape, and intimate-partner violence, was a serious and widespread problem. Approximately two-thirds of women have reportedly been beaten by their partners. Although the law also criminalizes family violence and imposes maximum penalties of two years’ imprisonment and monetary fines, it was seldom enforced. While the law also criminalizes intimate-partner violence, it nonetheless persisted throughout the country and was generally committed with impunity.
49.  	I accept that the applicant was sexually assaulted by her husband in 2006, prior to their marriage, and experienced domestic violence for a significant period of their marriage. I accept that the applicant was physically assaulted in 2015 by her brother-in-law in the presence of her husband who did not intervene to protect her. I accept that the applicant tried to separate from her husband in 2022 by moving to Enga Province but felt pressured to continue the relationship due to her children and cultural and societal factors. PNG is a patriarchal society, where women are traditionally dependent on a male partner or guardian for their economic and physical security. I accept that the applicant wishes to separate from her husband and has told her husband that she does not want to return to PNG.
50.  	I accept that the applicant began having extra-marital affairs in 2016, following the assault by her brother-in-law in 2015. This was raised in her protection visa application and in her Pre-hearing statement and I found the applicant’s oral evidence regarding these affairs to be convincing. However, I have concerns with the new claims raised with the Tribunal that she had received threats from Mr SK to expose the affair and that her husband had become aware that she had referred to extra-marital affairs in her protection visa application. 
51.  	I accept that the applicant had an extra-marital affair with a man while living in Enga Province between late 2022 and August 2023. However, I have significant concerns regarding her failure to raise with the Department that she had received threats from Mr SK to expose the affair. Even allowing for the WhatsApp messages being received after the protection visa interview, the applicant confirmed to the Tribunal that she had received similar threats from Mr SK while in PNG. While I acknowledge that she was not specifically asked about her extra-marital affairs at the protection visa interview, the delegate did seek clarification as to whom she feared harm from. Considering the applicant’s evidence to the Tribunal that her main fear relates to her husband and his family learning of her extra-marital affairs, I have concerns that she did not raise the threats from Mr SK with the delegate. Based on the available evidence, I am not satisfied that the threats from Mr SK are credible.
52.  	I similarly have concerns as to why the applicant did not raise with the delegate that her husband had questioned her about having extra-marital affairs after being informed by relatives in Australia that this was written in her protection visa application. While I acknowledge the applicant’s explanation that her husband accepted her denial, the fact that he had become aware of this information appears significant to his future suspicions and possible harm. Further, I do not find it plausible that her husband’s relatives would inform him of the extra-marital affairs claim but not the domestic violence claims in the application, given that the latter directly implicated him. Based on the available evidence, I am not satisfied that her husband was made aware of the extra-marital affairs claims in her protection visa application.  
53.  	I have placed no adverse weight on the applicant’s failure to apply for protection during her previous travel to Australia. I accept that she first became aware of a protection visa during her second trip to Australia in late 2022 to early 2023 but returned to PNG with the hope of bringing her children to Australia. I do not find this to undermine her claims regarding domestic violence from her husband.       
Refugee criterion assessment
54.  	Based on the applicant’s circumstances, I find that if she were to return to PNG, she is likely to return to either Enga Province where her mother, husband and children reside or to Port Moresby, being her previous place of residence. Based on the above findings, I consider there is a real chance, being a possibility that is not remote or far-fetched, that the applicant would be subjected to serious harm from her husband in the reasonably foreseeable future if she were to return to either Enga Province or Port Moresby. 
55.  	While the applicant acknowledged that her husband had not been physically abusive toward her while residing in Enga Province from late 2022, I have accepted that he was physically and sexually abusive toward her prior to their marriage and for a significant period of their marriage. The applicant left her husband in August 2023 and has told him that she does not intend to return to PNG, contrary to his understanding at the time she departed. I find that the separation from her husband would significantly increase the chance of harm if she were to return. 
56.  	As noted in the National Domestic and Family Violence Bench Book, where violence has occurred during an intimate relationship it is common for perpetrators to continue or escalate the violence after separation in an attempt to gain or reassert control over the victim or to punish the victim for leaving the relationship. Where women leave an intimate relationship and continue to experience violence after separation, their former partner may experience an intense sense of loss of control and the violent response may be severe, life-threatening, or lethal. A strong correlation has been found between separation and homicide.  
57.  	I also acknowledge that patriarchal cultural and societal traditions in PNG, including payment of a bride price, can create a sense of ‘ownership’ of wives and entitlement on the part of a  husband, which may be considered as permitting family violence.  
58.  	While I have not accepted the threats from Mr SK or that her husband was made aware of the extra-marital affairs claims in her protection visa application, I accept that the applicant’s involvement in several extra-marital affairs in PNG, including in Enga Province, increases the risk of harm from her husband. I accept that there is a possibility that he could learn of the affairs, which would elevate the real chance of serious harm toward the applicant.   
59.  	I have therefore considered whether the real chance of harm relates to all areas of PNG. In circumstances where the applicant would be residing without the support of her husband or other male protection and considering the prevalence of gender-based violence throughout PNG as discussed in the above country information, I am satisfied there is a real chance that the applicant would experience gender-based violence in all areas of PNG. 
60.  	A refugee protection reason has not been expressly submitted. Based on the facts I find that the applicant fears persecution for reasons of her membership of a particular social group which may be described as ‘Women in PNG’ or ‘Separated women in PNG’. I find these groups to satisfy the definition in s 5L as the characteristics of gender and/or relationship status are shared by each member of the group, including the applicant; are not a fear of persecution; and are innate or immutable or distinguish the group from society. I find this to be the essential and significant reason for the persecution, as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group and is non-random. I find the persecution to involve serious harm, as required by s 5J(4)(b), as the harm includes threats to her life and significant physical harassment or ill-treatment.
61.  	According to country information, women who are subjected to gender-based violence in PNG are unlikely to be able to avail themselves of adequate state protection. DFAT reports that although significant attention has been directed to the level of gender-based violence in PNG by the national government and NGOs, the police response remains inadequate. While the Royal Papua New Guinea Constabulary (RPNGC) lacks the capacity to respond to crime generally, its response to gender-based violence is especially lacking. 
62.  	Domestic and international sources report that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases such as those involving attempted murder, serious injury or repeated rape. Statistics provided by the RPGNC between December 2017 and October 2018 showed 2,013 family and sexual violence (FSV) cases were reported in Port Moresby and the Central Province, resulting in 195 arrests and 11 convictions; that is, only 1 in 200 of reported cases resulted in a conviction. Police officials admitted that police could not keep women and children safe and lacked resources for thorough investigations.
63.  	FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. The RPNGC has made some progress in recent years with the establishment of FSV Units in every province. However, there are not enough FSV Units to respond adequately to the scale of the problem – there are only 106 FSV Unit officers across the country and they are typically subject to the same resource constraints as the rest of the RPNGC.
64.  	Considering the above, I find that effective protection measures, as defined in s 5LA, would not be available to the applicant. 
65.  	I find that the applicant could not take reasonable steps to modify her behaviour to avoid a real chance of persecution. Such modification would fall within the exception in s 5J(3)(b) of concealing an innate or immutable characteristic. 
66.  	For the above reasons, I find the applicant has a well-founded fear of persecution in PNG and is a refugee within the meaning of s 5H(1) of the Act.
Protection in a third country
67.  	Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Based on the available evidence, I find that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
Conclusion
68.  	For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
decision
69.  	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 Act.

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.
…