2017855 (Refugee) [2024] ARTA 608 (29 October 2024)
Decision and			
Reasons for Decision

Respondent:	Minister for Home Affairs
Tribunal Number:	2017855
Tribunal:	General Member K Hoang
Date:	29 October 2024
Place:	Brisbane
Decision:	The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that the applicants meet s 36(2)(a) of the Migration Act.

Statement made on 29 October 2024 at 12:26pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – women without male protection – gender-based violence – physical assault – fear of killing – internal relocation – state protection – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499 
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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
APPLICATION FOR REVIEW
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.
2.  	This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 December 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
3.  	The applicants in this case are [name] (the applicant) and her daughter [Applicant 2] (the second applicant). They claim to be nationals of Papua New Guinea (PNG) and applied for the visas on 19 June 2017. 
4.  	The delegate refused to grant the visas on the basis that neither applicant is a person in respect of whom Australia has protection obligations. The applicants applied to the Tribunal for a review of the delegate’s decision on 10 December 2020. They provided the Tribunal with a copy of the delegate’s decision record. 
5.  	The applicant appeared before the Tribunal on 13 September 2024 to give evidence and present arguments. She did not need the assistance of an interpreter. Having conducted the hearing, I am satisfied that the applicant was afforded a meaningful opportunity to present arguments and evidence in support of her and her daughter’s claims. 
6.  	The issue in this case is whether any of the applicants meet the criteria for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Criteria for protection visa
7.  	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.
8.  	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.
9.  	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).
10.  	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.
11.  	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
12.  	In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant’s background and circumstances
13.  	The applicant is now [age] years old. She was born in [Town 1] Hospital in the East Sepik region, and she was raised in Port Moresby. She resided in Port Moresby for the majority of her life. 
14.  	The applicant’s father passed away in 2015 while her mother, [named], is still alive and resides in Port Moresby. She has [number] biological siblings including [siblings named]. She also has two half-brothers [Relative A] and [Relative B], who are children from her father’s previous relationship before he married her mother. Her half-brothers reside in Port Moresby. She also has [half-sisters], [named]. The applicant is particularly close with her biological sister, [Sister A], and to a lesser extent her brother [Brother A] with whom she has not spoken with for 5 years. 
15.  	The applicant is well-educated, having completed a number of degrees from [a named] College, including a [Qualification 1], which she completed in [specified year]. The applicant held jobs as a Manager in [two fields] for private companies in PNG, and also obtained employment at [two other employers].
16.  	The applicant fell pregnant with the second applicant while she was studying in college to her ex-partner, [Partner A], who she said is a criminal and who has been in and out of prison. She left that relationship when the second applicant was young and subsequently entered a relationship with an Australian citizen, [Partner B]. Their relationship commenced in 2010 and they were married in 2013. According to documentary evidence provided to the Tribunal, [Partner B] formally adopted the second applicant as his daughter [in] October 2018 by order of a court. The originating application for adoption was filed [in] April 2016. 
17.  	At hearing, the applicant said that she and [Partner B] separated at the end of 2016, and [Partner B] returned to Australia by himself. The relationship between [Partner B] and the applicant broke down because he had gotten into another relationship. The applicant and second applicant travelled to Australia in 2017, and the applicant had intentions to salvage the relationship with [Partner B]. However, this did not eventuate. Although the applicant and [Partner B] are no longer in a relationship, they have not taken steps to formalise a divorce. 
18.  	Towards the middle of 2018, the applicant entered a relationship with another Australian citizen, [Partner C]. Their child, [Son A] was born in [year]. There was in place a domestic violence protection order against [Partner C] in respect of the applicant and second applicant in 2020. According to the applicant, [Partner C] has ADHD, and their child [Son A] has NDIS funding to support his condition of developmental delay.
19.  	The applicant has custody and care of both the second applicant and [Son A]. The second applicant continues to see [Partner B] during school breaks, and she, along with [Son A] stay in the care of [Partner C] every two weeks while the applicant does fly-in-fly-out work in the [specified region]. 
20.  	Based on oral and documentary evidence before me on the Department and Tribunal files, I accept the above as reflecting the applicants’ past and present circumstances.
Evidence before the Department
The applicant
21.  	The applicant raised protection claims before the Department that can be summarised as follows. 
22.  	She fears harm in PNG from her [Relative C], because of her involvement in a personal dispute involving [Relative C’s] daughter, [Relative D] and an Australian man named, [Mr A]. The applicant was contacted by [Mr A] on [social media] while she was in Australia. [Mr A] claimed to be the boyfriend of her [Relative D], and he told the applicant that [Relative D] had stolen money and jewellery from him. The applicant tried to inform [Relative C] of the situation, but he did not want to speak to her.
23.  	The applicant was interviewed by the Department on 18 February 2019. 
24.  	At interview, the applicant explained that when she saw [Relative D] on [social media], she decided to message [Relative D] about the accusations. [Relative D] denied [Mr A’s] accusations and called him a liar and a drug addict. [Relative D] then contacted her mother and accused the applicant of making false accusations against her. She said that [Relative D] called her mother and yelled at her. The applicant then messaged [Mr A] and asked that he not contact her any further because she was in trouble with her family. She said that [Mr A] posted a nude video of [Relative D] on social media, which led to her being accused of uploading the video.
25.  	The applicant claimed that [Relative C] had threatened to harm her, and had informed her mother, [named], that he would have her raped and killed were she to return to PNG because of her involvement in the dispute.
26.  	The applicant also stated that she had been sexually abused as a child by her half-brother, [Relative A]. She also fears that [Relative C] will harm the second applicant because of this dispute, and that the second applicant might suffer harm in PNG because of the general situation for women and girls in PNG.
27.  	In support of her claims for protection, the applicant provided the Department with letters of support from [Mr A] and copies of [social media] messages purportedly sent by [Mr A] to a PNG police officer and to [Agency 1].
The second applicant
28.  	The second applicant made claims that she could not go back to PNG because she and her mother will be beaten and raped, and no one can do anything about it because of the high incidence of violence against women in PNG and a lack of protection due to police bribery and corruption. 
Delegate’s decision
29.  	In respect of the applicant’s claims relating to [Relative C], the delegate was not satisfied as to the credibility of the applicant’s claims and did not consider the claim against the refugee or complementary protection criteria. In particular, the delegate considered that the applicant had given inconsistent evidence about whether it was [Relative C] or his wife [named] who had threatened her mother and she had little evidence to substantiate her claims in relation to the nude video of [Relative D].
30.  	In relation to the applicant and second applicant’s other claims, the delegate assessed their claims based on their membership of a particular social group, ‘women and girls in PNG’. The delegate accepted that the applicant was a victim of sexual assault for several years as a child. However, the delegate noted that the applicant was ‘well protected in PNG’ in her adult years. The delegate accepted country information indicates that without male protection, many women in PNG are likely to experience rape, assault and systematic discrimination in their lifetime. However, the delegate found that the applicant’s maternal family, including her two brothers, mother and their wantok will continue to protect both her and her daughter in the reasonably foreseeable future. As such, the delegate did not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future. For the same reasons, the delegate was also not satisfied that the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG. 
31.  	The delegate also considered that the second applicant would not face a real chance of serious harm or a real risk of significant harm, because she would benefit from the protection of her biological father and her maternal family.
32.  	For completeness, I note that the delegate’s decision record goes into some detail about the applicant having been convicted of criminal offences, for which received a three-month suspended sentence of imprisonment and was released on a 12-month good behaviour bond. However, I consider that these are not issues relevant to my assessment as to whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee or complementary protection criterion.
Evidence before the Tribunal
33.  	Prior to the hearing, the applicant provided the following documentary evidence:
•	copies of the applicant and second applicant’s passports;
•	copies of the second applicant’s birth certificates (one issued under the last name [of Partner A] and another under the last name [of Partner B]);
•	certificate of Australian citizenship for [Son A]; 
•	form – evidence of developmental delay for [Son A];
•	originating summons in the matter of an application for adoption of a child, [Applicant 2], by [Partner B] and [the applicant], filed [in] April 2016;
•	authentication of an instrument of consent in the matter of an application for adoption of a child, [Applicant 2], by [Partner B] and [the applicant], filed [in] April 2016;
•	sworn affidavit of [Partner B], dated 30 May 2016, in respect of the application for adoption;
•	adoption order in the matter of an application for adoption of a child, [Applicant 2], by [Partner B] and [the applicant], made by [Court 1], order dated [in] October 2018; and
•	statement made by the applicant, dated 6 September 2024.
Tribunal hearing
34.  	At hearing, I asked the applicant why she feared returning to PNG. The applicant said that she feared a lot of things, particularly violence within her family. She said that she is facing verbal abuse from her brothers and that she had already been harmed by them, including being raped and abused when she was a child.
35.  	In her statement of 6 September 2024, the applicant referred to having been sexually abused by her half-brothers [Relative A] and [Relative B] for a number of years. Her statement recounts that the abuse began when she was ‘about 3 years going on 4’ and continued for about 7 years unnoticed. She did not know exactly when the abuse started or which of her half-brothers was the first abuser. She stated that if it was not for her sister, [Sister A], the abuse would have continued. [Sister A] was also the victim of abuse by [Relative A]. The applicant said that the abuse stopped after [Sister A] spoke up and her mother got the police involved. She stated that while [Relative A] and [Relative B] were arrested, her mother did not pursue the case because she cut a deal with her father. 
36.  	At hearing, the applicant said that she felt ashamed, and she did not know when she was younger that she was being abused by her half-brothers or when it started. The applicant said that her sister, [Sister A], had asked her when she was around 10 years old whether she had been touched, and then bought this to her mother’s attention. The applicant said that her mother took them to the police and a report was filed. She had asked her mother why her mother had allowed the abuse to happen to her, but she has never received an answer. The applicant said that she feels ashamed and wants to protect the second applicant from similar harm at any cost. Among her biological siblings, [Brother A] was also abused but she only had an understanding of her situation and that of [Sister A’s]. 
37.  	The applicant said that due to the abuse, she moved out very quickly from the family home and found respite in her uncle’s house. The applicant said that during her time studying in college, she was living with her uncle in [a location] in Port Moresby before moving in with [Partner A] when the second applicant was born. She said she floated between living with [Partner A] and her uncle. She said her uncle is currently in a wheelchair and she contacts her cousins from time to time to check in on him. The applicant said that life with [Partner A] was unstable, as he was constantly in and out of prison, and she considered that this was not a good life for her or her daughter. She said she was supported by her sister [Sister A] to leave the relationship and to continue with her education.
38.  	The applicant said that when she met [Partner B], she had found a ‘safe haven’ and that he provided her and the second applicant with stability. [Partner B] adopted the second applicant and cared for her. This was a good life and a life that she wanted.
39.  	The applicant said that in preparing for the court adoption, she needed permission from [Partner A] as the biological father. She visited [Partner A], who was in prison at the time, and explained to him that [Partner B] could give the second applicant a good life, and [Partner A] signed paperwork to release the second applicant. She said she did what she thought would be the best thing for the second applicant. However, the applicant claimed that when [Partner A] was released from prison, he was angry at her about the adoption, and he had threatened that he was going to kill her. When I asked when this happened, the applicant said that it was sometime towards the end of 2015 when they ran into each other at the shop. The applicant said that she has not had any contact with [Partner A] since then. 
40.  	The applicant also said she fears harm from her half-brothers in PNG. She said that her brothers — both biological and half — they are not good at talking, and that it gives them a sense of happiness when they are fighting a woman. She said that her brothers feel that men are superior and while she loves them, she does not have a relationship with them, whether verbal or physical. The applicant said that currently her home in Port Moresby is not safe. She said that since her father has passed, her brothers and half-siblings are contesting his will. Her father had never signed the will in front of a judge and the half-siblings are contesting whether her mother should be entitled to 50% of the estate. The applicant said the two sides attempted mediation over a video call while the applicant was in Australia. She gave evidence that this descended into a fist fight after she was taken off the video. The applicant said she does not want anything to do with the will, and that she would give any of her share in the will to her mother. 
41.  	The applicant said that she has no other place where she can live in PNG. She said that she wishes that her home was a safe place for her and the second applicant, but it is not. She said it was not possible for her relocate elsewhere, for example, in the Highlands where tribal fighting is widespread and it is unsafe for women. She said that returning to PNG with the second applicant reminds her of torture and abuse, and she does not feel safe in any other area of PNG. 
42.  	I asked the applicant if she had suffered harm from [Relative A] or [Relative B] in her adult years. The applicant said that in 2015, she returned to her home village in [Town 1] for her father’s burial. She recounted an encounter with [Relative A] where, in the village, she had sent [Applicant 2] down to the river with her cousin, and she saw that [Relative A] had followed them. She said that this bought back memories and she followed after him. The applicant said that [Relative A] tried to pull on her shirt and she said to him ‘do not try’. The applicant said that [Relative A] left before she could confront him further. I asked the applicant why she did not include this in her recent statement to the Tribunal. She applicant explained that it took her two to three days to write the statement, and it brought up a lot of traumatic memories for her. She said she wrote down what she could to get it out of her head.
43.  	I asked the applicant if she were to return to PNG, whether her biological brothers and sisters would protect her from any future harm, from [Relative A] or [Relative B]. The applicant said that she was not sure. She said that she has a very close relationship with her sister, [Sister A], and that while she had a relationship with her brothers, she considers that it is a sibling relationship. She said that if the question was whether they ‘had her back’, the answer is ‘no’. When asked whether she could go to the police to seek protection, the applicant replied that she could, but they are not in a position to protect her. She said she knows this because [one sister] is currently being beaten by a police officer. 
44.  	I asked the applicant at hearing about her claims to fear [Relative C]. The applicant explained that [Relative C] is a pastor of the church that her mother and late father attended. She said that she had received a message from [Mr A] who called her and informed her that her [Relative D] had stolen from him. The applicant told [Mr A] that she would contact her mother and sister so they could go to church and inform [Relative C]. The applicant said that her mother went to the church in [a named village] to tell [Relative C] only for [Relative C’s] wife [named] to cast blame on her. She said that [Relative C] had come to Port Moresby to threaten her family and her mother. She said that when she heard that news, she was scared about being abused, and this triggered her due to the previous abuse that she had experienced.
45.  	The applicant explained that she does not hold any subjective fear of harm from [Relative C] at present. I confirmed with the applicant that her present fears of returning to PNG relate to her ex-partner [Partner A], her half-brothers [Relative A] and [Relative B], and her fear of gender-based violence against her and the second applicant in PNG. 
Country information
46.  	I have considered the following country information in reaching my decision.
47.  	According to DFAT’s September 2022 Country Report on PNG, under the heading ‘Wantokism/Wantoks, it is reported that:
‘Wantokism’ is a system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society. Wantokism affects most aspects of contemporary life in PNG, including in business and government. In the Tok Pisin language, Wantok means ‘One Talk’, referring to the language of the tribe or clan to which a person belongs. In PNG, the overall welfare of the tribe and its members is paramount. 
Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures those members of the tribe less able to look after themselves are supported. 
48.  	According to DFAT’s September 2022 Country Report on PNG, under the heading ‘Women’, it states:
3.18 Violence against women and girls in PNG is very common, among the most common in the world. In PNG, such violence is sometimes referred to as Gender-based Violence (GBV) or Family and Sexual Violence (FSV). Sources report that almost all women and girls will be subject to violence at some point during their lives. The PNG Demographic Health Survey of 2016-18, which is the latest data available, found very high levels of violence against women: 58 per cent of women aged 15 to 49 in PNG had experienced physical violence since the age of 15 (including 48 per cent in the last 12 months); 28 per cent experienced sexual violence; and 18 per cent of women who had been pregnant had experienced violence during their pregnancy. The PNG Coalition of Parliamentarians to End GBV states that one woman in PNG is beaten every 30 seconds and there are 1.5 million victims of GBV every year. 
3.19 DFAT assesses that women across PNG face a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict their ability to fully participate in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide. Women who are subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.
…
3.21 While there has been significant attention paid to the level of GBV in PNG by the national government and NGOs, and some state resources made available to address it, the police response remains inadequate. The RPNGC lacks the capacity, including most especially vehicles, fuel and human resources, to respond to crime generally (see Police). However, its response to GBV is especially lacking. Domestic and international sources report that police and prosecutors rarely pursue criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Statistics provided by the RPGNC between December 2017 and October 2018 showed 2,013 family and sexual violence (FSV) cases were reported in Port Moresby and the Central Province, resulting in 195 arrests and 11 convictions; that is, only 1 in 200 of reported cases resulted in a conviction. Given how few women seek help from police, this suggests only a tiny proportion of perpetrators of violence are arrested or successfully prosecuted. Even seemingly clear-cut cases can end without a conviction. For example, on 3 September 2021, in Mt Hagen, following the murder of a 31-year-old woman, three men were released from prison following a magistrate dismissing all charges. This was despite the fact that, according to media reports, police found the deceased woman’s body wrapped in a tarpaulin in the back of her husband’s vehicle at a police checkpoint, with the other two co-accused men present, and the husband confessed to the murder. The men were re-arrested following public outcry. 
3.22 FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Levels of GBV by police officers themselves are high. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. However, the RPNGC has made some progress in recent years, establishing Family and Sexual Violence Units (FSVU) in every province. Sources told DFAT FSVUs represent progress in the policing of GBV, especially with regard to the willingness to investigate and make arrests, and in their connectedness to other services. However, there are not enough FSVUs to respond adequately to the scale of the problem. There are only 106 FSVU officers across the country and at the time of publication, there is a single FSVU officer in Tari, capital of the Highlands province of Hela, to cover the whole province (population of around 250,000). FSVU officers are typically subject to the same resource constraints as the rest of the RPNGC. 
3.23 In September 2013, PNG’s parliament unanimously passed the Family Protection Act (2013). It makes provision for interim protection orders (IPOs) and longer-term protection orders (POs), which forbid contact of the person seeking the order by a spouse, ex-spouse or family member. In-country sources told DFAT that this is a reasonable framework for a justice sector response to GBV, but suggest its implementation remains weak. IPOs can be issued by Village Courts, unlike POs, which must be issued by District Courts. While IPOs reportedly make a positive difference to perceived safety of FSV survivors, sources suggest they are not presently offering women in PNG much protection. Only about 1,000 such orders are issued per year, which is not enough given there are estimated to be 1.5 million acts of GBV in PNG each year. Furthermore, sources report the RPNGC typically lacks the inclination and resources to enforce such orders. That said, breaches of IPOs have reportedly been prosecuted upon occasion and offenders even jailed in several instances in Milne Bay province. Amendments to the Family Protection Act (2013) were passed in January 2022, which increased the penalties for breaching an IPO or PO, created an aggravated domestic violence offence and created an ‘Urgent Notice’ scheme. 
3.24 Sources report a significant lack of services for people requiring assistance after suffering family violence. There are now 22 Family Support Centres (FSCs) across the country (one in each province), typically attached to a general hospital to provide health services for GBV survivors. But while the FSC model is an advance for GBV health responses, their services are insufficient. Each centre tends to have 1-2 staff, primarily nurses or social workers, rather than doctors, and receives between 30-100 GBV referrals per month. FSCs usually charge somewhere in the region of PGK 20 (about AUD 8 dollars) for services and/or medical reports. These reports are often used for family compensation negotiations rather than police investigations – and it is normally the families of the survivors who benefit from such compensation rather than the survivor herself. 
3.25 While women’s refuges exist in PNG, they are insufficient for the level of GBV that exists. Sources report that Port Moresby, a city of 800,000 people, has only six safe houses for women suffering GBV, open to the public, and mostly run by faith-based organisations. Some of these safe houses have as few as two rooms, one for the survivor and one for a carer, while others can accommodate up to 10 survivors in a shared room. The situation for abused children is even tighter, with very few safe houses able to accommodate unaccompanied children.
49.  	A range of other independent sources and reports have described sexual and GBV in PNG as being widespread. For example, the US Department of State’s PNG Human Rights Report of 2022 noted that GBV was ‘a serious and widespread problem’ and that despite the criminalisation of intimate-partner violence, it ‘nonetheless persisted throughout the country and was generally committed with impunity’. Its 2023 Report similarly noted that ‘gender-based violence, including ‘sexual violence, gang rape, and intimate partner-violence, was a serious widespread problem’. Human Rights Watch’s World Report in 2024 highlights that ‘PNG remains a dangerous place to be a woman or girl’ and that gender-based violence remains ‘pervasive’.
50.  	I note that the risk to women and girls of experiencing sexual violence such as rape and gang rape are longstanding in PNG. The PNG Government has commented as far back as 2006, that:
Young women all over the country are at high risk of rape, gang rape and other forms of violent sexual assault, and the attendant fear accompanies them in many aspects of their daily life in urban and rural settings. It severely limits their rights to freedom and to assembly and their right to participate equally alongside young men in all forms of social, political and economic life.
51.  	There is little to suggest that the situation for women and young girls have improved in this respect. In 2023, the Governor of Papua New Guinea’s National Capital District stated that ‘going to public spaces is a big challenge for women and girls’ and that GBV presents as a ‘catastrophic human rights violation for a country not at war’. 
52.  	In the 2021 report of the Special Parliamentary Committee on Gender-Based Violence, members of the Committee observed that:
Gender-based violence (GBV) impacts every single person in Papua New Guinea (PNG), whether as a survivor, a perpetrator or a witness. GBV has long been a challenge that successive PNG Governments have sought to tackle, but there has been little sustained progress and testimony from GBV survivors across the country suggests that the problem is getting worse.
….
The impact of GBV on women, men, boys and girls across the country is hard to describe, with a growing feeling amongst communities across the country that violence is increasingly raging out of control with perpetrators facing little accountability. In this context, it must be recognised that the impact of GBV disproportionately affects women and children. This reflects more general challenges protecting and promoting the rights of PNG’s women and children. PNG has a Gender Inequality Index value of 0.725, ranking it 161 out of 162 countries in 2019, and 155 out of 189 countries on the Human Development Index. The Committee’s assessment is that gender inequalities which play out in the political, economic, and social sectors are reflected in the violence which is directed towards women and girls across the country.
53.  	The Committee also observed that GBV can take place in different contexts including within families, in the community, the workplace, public places, as well as within conflicts such as tribal or ethnic warfare. As such, the Committee notes that perpetrators can be family, friends, employers and unknown members of communities. 

REASONS AND FINDINGS
Applicants’ identities and country of reference
54.  	Based on copies of the applicant and second applicant’s passports and birth certificates available on the Department and Tribunal files, I find PNG to be their country of nationality and their receiving country for the purposes of refugee and complementary protection assessments. 
Credibility and findings of fact
55.  	In assessing the applicants’ case, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicants’ claims. I 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. However, the Tribunal is not required to accept uncritically any or all of an applicant’s claims, and nor does the Tribunal require rebutting evidence before it can find that a particular assertion by an applicant has not been made out. 
56.  	I found the applicant to be a credible witness at hearing. She gave evidence that was largely consistent with her protection visa application, protection interview, and her documentary evidence. In particular, I found — as the delegate did — the applicant’s evidence regarding childhood sexual abuse at the hands of her half-brothers to be compelling.
57.  	As a starting point, I accept, for the purposes of the decision, that:
•	the applicant was subjected to sexual abuse by her half-brothers [Relative A] and [Relative B] from when she was three until she was around 10 years old;
•	the applicant’s ex-partner [Partner A] has a criminal history in PNG, and he is also the second applicant’s biological father;
•	the applicant remains legally married to [Partner B], who currently resides in Australia;
•	[Partner B] had adopted the second applicant under PNG law by order of a court dated [in] October 2018. However, he has known and cared for the second applicant since 2010; 
•	the applicant has a strong bond with her sister, [Sister A], but does not have a strong ongoing relationship with her siblings and half-siblings who reside in Port Moresby; and
•	the last physical interaction the applicant had with [Relative A] was in 2015 at her father’s burial.
58.  	In addition, I accept the applicant’s evidence at hearing that she has effectively abandoned her claims to fear any harm from [Relative C] if she were to return to PNG. I have therefore not considered this claim any further. 
Refugee findings
59.  	Having considered the applicant’s circumstances, I find that if the applicant were to return to PNG, she is likely to return to Port Moresby where she has resided most of her life. If she were to do so, I consider that she faces a real chance of suffering serious harm on the basis of her membership of a particular social group, ‘women in PNG without male protection’.  Having regard to s 5L(a)-(c), I am satisfied that being a single woman and without male protection are characteristics shared by each member of the group, and by the applicant. I am satisfied that these characteristics distinguishes the group from society and is not a fear of persecution.
60.  	I have accepted that the applicant has experienced sexual abuse at the hands of her half-brothers when she was young. I note that the applicant has not experienced further harm from her half-brothers in her adult life. 
61.  	I am willing to accept the applicant’s evidence that [Partner A] signed documents relating to the adoption of the second applicant and that that [Partner A] verbally threatened the applicant towards the end of 2015 after he was released from prison. While the applicant claimed that she has not seen [Partner A] since, I note the existence of a statutory declaration on the Department’s file in which [Partner A] gave permission for the second applicant to travel to Australia. This declaration was dated 23 November 2016. This would tend to suggest that the applicant was in contact with [Partner A] prior to travelling to Australia. As such, I find that the applicant last had contact with [Partner A] in 2016. However, I am willing to accept that she has not had any contact with him since. 
62.  	When looking into the reasonably foreseeable future, I find that a fundamental change to the applicant’s circumstances is that she no longer has any male protection or protection from her ‘wantok’ in PNG. While I agree with the delegate’s finding that the applicant has been ‘well protected in her adult years’ in PNG, this is no longer the case when I consider the reasonably foreseeable future. 
63.  	I place considerable weight on the fact that the applicant would return to PNG without the protection of [Partner B], whom she has explained provided her with a ‘safe haven’ and who also provided care and protection for the second applicant. When considering the applicant’s other family members, I do not consider that any protection from the applicant’s sister, [Sister A], or her mother, would be enough to alleviate the real risk of serious harm from GBV that she might face. I do not consider that the applicant could rely on her uncle for protection as she has done in the past. I accept the applicant’s evidence that her uncle is currently confined to a wheelchair. I accept the applicant’s evidence that she does not have a strong bond with her biological brothers in Port Moresby such that they would ‘have her back’. Nor do I consider that the applicant has protection from [Partner A], as I have accepted that they have not been in contact since 2016. In essence, I do not consider that the mere presence of these individuals in PNG means that the applicant will be protected from the risk of GBV in the reasonably foreseeable future. 
64.  	I cannot dismiss as remote or far-fetched the possibility that her half-brothers might harm her again in the absence of any male protection in the reasonably foreseeable future. This is particularly so given the ongoing tensions within the household relating to her late father’s will, and the applicant’s credible evidence as to her half-brothers’ attitudes towards women and their propensity for violence. I am less convinced that the applicant would face harm from [Partner A], given that they have not had any contact since 2016. However, given their history, it is not inherently implausible that he might seek to harm the applicant if he were to come across her in the reasonably foreseeable future.   
65.  	Nor can I dismiss as remote or far-fetched a risk that the applicant would face harm as a woman without male protection in Port Moresby, when carrying out her daily activities in public. Indeed, country information supports the conclusion that GBV — including rape and gang rape — are longstanding issues of concern for women and young girls. These instances of harm occur not just in domestic or family contexts, but also in public places. I accept that country information suggests perpetrators of GBV can be family members, friends and unknown members of the community and I accept that GBV affects women regardless of their social status.
66.  	When I consider these risks cumulatively alongside the country information, I am satisfied of the real chance that the applicant would be targeted by men in PNG — including her half-brothers and [Partner A] — who may inflict sexual violence on her (s 5J(1)(b)), or worse, kill her, in the reasonably foreseeable future. Having regard to the examples of serious harm in s 5J(5), I am satisfied that the harmed feared amounts to a threat to her life or liberty, or significant physical harassment or ill-treatment of the person. 
67.  	I consider my findings in this regard are supported by country information. Country information cited above suggests that women in PNG face persistent social and discrimination due to long-standing traditional values and gender roles which restrict their ability to participate fully in the community and workforce. Women face a high risk of gender-based violence regardless of their social status and those who are subjected to GBV are unlikely to be able to avail themselves of adequate state protection or support services. I am satisfied that the applicant’s membership of a particular social group ‘women in PNG without male protection’ would be the essential and significant reason for the persecution (s 5J(4)(a)). I am also satisfied the persecution that the applicant would face involves systematic and discriminatory conduct (s 5J(4)(c)).
68.  	On the country information before me and having regard to the applicant’s circumstances, I am satisfied that the real chance of harm extends beyond Port Moresby to all areas of the receiving country (s 5J(1)(c)). The country information indicates that the prevalence of GBV is widespread and pervasive throughout the country. Country information also suggests there to be a lack of services, safe houses, and shelters for women throughout the country, and given that the applicant has no male protection, I consider there to be no mitigating factors against the real chance of serious harm anywhere in PNG. 
69.  	I am also satisfied that effective protection measures are not available to the applicant. While I accept country information suggests that some improvements have been made in respect of police responses and support for victims of GBV, there are ongoing and significant deficiencies that render state protection ineffective (s 5J(2)). Lastly, I do not accept that this is a case where the applicant can take reasonable steps to modify her behaviour in any way to avoid the real chance of serious harm (s 5J(3)).
70.  	In all the circumstances, I am satisfied that the applicant has established a well-founded fear of persecution for reason of her membership of a particular social group and she is a refugee as defined by s5H(1). I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The second applicant
71.  	The second applicant is now [age] years old. In her protection visa application, she claimed to fear being beaten and raped in PNG and no one can do anything about it. The applicant confirmed at hearing that these were the fears held by the second applicant, and that the things that happened to her might also happen to her daughter.
72.  	On the evidence before me, I accept that the second applicant has spent part of her childhood in PNG and there is no indication that she suffered harm previously. However, it is also the case that she has now spent over 7 years in Australia, and that she would return to PNG, in all likelihood, with little familiarity of the environment there. Like the applicant, she would return to PNG without the support and protection of [Partner B], who had provided her with protection from a young age. I would also consider that she would be without the support of her biological father, whom she has not seen, and with whom her mother does not have contact with. Given my findings above, I do not consider that she would be protected by the applicant’s brothers or half-siblings. Indeed, given my findings that the applicant’s half-brothers committed sexual abuse on her as a young child, I consider that this puts the second applicant at elevated risk, given her age. I also consider that what limited support she may receive from the applicant’s sister [Sister A] and her grandmother would not overcome the loss of [Partner B] as a source of male protection. 
73.  	Looking into the reasonably foreseeable future, the applicant is at an age where she will need to begin to establish herself in Port Moresby. Having considered carefully the country information above in respect of young girls, I am satisfied there is a real chance the applicant would suffer GBV of such a nature that amounts to serious harm in the reasonably foreseeable future. I am satisfied that the essential and significant reason for such harm would be her membership of a particular social group ‘young girls in PNG without the support of a father’. Having regard to s 5L(a)-(c), I am satisfied those characteristics of being a ‘young girl in PNG without the support of a father’ are characteristics shared by each member of the group, and by the second applicant. I am satisfied that these characteristics distinguishes the group from society and is not a fear of persecution. I am satisfied that the persecution involves systematic and discriminatory conduct. 
74.  	For the same reasons given above, I find that the real chance relates to all areas of PNG, that effective protection measures are not available to the second applicant, and that this is not a case where she could take reasonable steps to modify her behaviour to avoid the real chance of serious harm. 
75.  	I am satisfied that the second applicant has a well-founded fear of persecution in PNG, and she is a refugee under s 5H(1). I am satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). 
Third country protection
76.  	On the available evidence, there is no suggestion that either of the applicants has a right to enter and reside in any third country such that s 36(3) of the Act would apply.
Conclusion
77.  	For all the reasons above, I am satisfied that both applicants have a well-founded fear of persecution in PNG, and they are refugees for the purposes of s 5H(1). I am satisfied that both applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
78.  	Given my findings above, it is not necessary for me to consider the applicants’ claims against the complementary protection criteria. 
79.  	For completeness, I note that the applicant asked the Tribunal to consider referring the matter for Ministerial Intervention in the event that the Tribunal could not make a favourable decision. Given my findings above, referral to the Minister under s 351 is not necessary.
decision
80.  	The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that both applicant meets s 36(2)(a) of the Migration Act.

Date of hearing: 13 September 2024

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.
…