1412094 (Refugee)

1412094 (Refugee) [2015] AATA 3754 (13 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1412094
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:David McCulloch
DATE:13 November 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 13 November 2015 at 9:24am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Papua New Guinea (PNG), applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] June 2014.
The applicant appeared before the Tribunal on 28 May 2015 and 5 November 2015 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Pidgin and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.
The issue in this case is the credibility of the applicant and whether, on her except the claims, she fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant arrived in Australia on a Visitor visa [in] March 2009. This visa expired [in] June 2009 and the applicant became an unlawful non-citizen. An application for a Protection visa was lodged [in] November 2010 which was deemed invalid. A further Protection visa application was made [in] March 2011 which was refused by the delegate of the Minister [in] June 2011. A review by the Tribunal upheld the delegate’s decision on 31 October 2011. The current application for a Protection visa was made [in] August 2013.
The current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (section 36(2)(aa) of the Act).
The Member to whom this matter was constituted ceased to be a Member of the Tribunal following the hearing of the 28 May 2015 and before the decision was finalised. Consequently, the matter was reconstituted to a different Tribunal Member. The Member to whom the matter was reconstituted presided at the hearing of 5 November 2015. The Member to whom the matter was reconstituted appraised himself of relevant files relating to both Protection visa applications and listened to the recording of the Tribunal hearing which took place on 28 May 2015.
Claims
The applicant’s claims are contained in a written statement provided as part of the current Protection visa application to the Department. It contains the following information. The applicant was born in [Town 1] in PNG and is from [Tribe 2]. A war between [Tribe 2] and [Tribe 3] broke out in [year]. In 2001, the applicant was raped by members of [Tribe 3] when she was down by the river. The men who raped her told her that they would kill her if she told anyone. The applicant later discovered she could not have children because of the rape.
The applicant moved to Port Moresby in 2001. While there, she was watched by men from [Tribe 3] and did not feel safe. The applicant fears that, if she returned to PNG, should face threats from [Tribe 3].
In 2008 the applicant married [her husband]. They lived together in Port Moresby. [Her husband] grew frustrated with the applicant as he was interrupted at work by men from [Tribe 3] as part of their threatening conduct towards the applicant. This resulted in [her husband] leaving the applicant on her own in Port Moresby in 2008, despite threats to her safety. [Her husband] and the applicant came to Australia together in March 2009.
The applicant’s health deteriorated throughout 2011 and 2012. [Her husband] became increasingly angry and abusive. [In] May 2013, [her husband] took the applicant to hospital for a second [surgery]. When coming out of surgery, [her husband] was not there and the applicant has not seen him since.
[In] June 2013 the applicant received a text message from [her husband’s] Australian phone number which stated:
‘Useless arsehole woman thanks for making me fall into your problems as I got trapped for six solid years. Making risk my life. Now you enjoy freedom here and I’m on my way back home but remember one fine day you will come to PNG and that time I’ll make sure you will feel the pain and suffering like other ladies feel. Enjoy.’
The applicant has not spoken to, or seen, [her husband] since receiving the message. The applicant fears for her safety as she believes he will attack her.
If the applicant returns to PNG, she will have to live in either Port Moresby or [Town 1]. [Her husband] would easily find the applicant, as this is a small place with the same people. She fears that [her husband] will physically attack her. He will claim his wife as his property. Police are unlikely to protect the applicant. Domestic violence is often not investigated by the police.
The applicant fears harm from [her husband’s] family, as they did not want the applicant to marry him and she was tainted by having been raped. That attitude got worse when they discovered she could not have a child.
If the applicant returns to [Town 1] and should she live with her mother and father and would be vulnerable to attacks from [her husband] and [Tribe 3].
In 2011, the applicant discovered that she was born with a [medical condition]. She has had two surgeries in Australia. The first surgery was not successful. Despite the second surgery [in] May 2013, the applicant continues to have [related] problems. The applicant takes pain medication and has to seek regular assistance. She experiences [related symptoms]. She has severe [pain] and difficulty sleeping.
The applicant has also been diagnosed with severe mental health issues stemming from experiences in PNG. She receives regular psychological care from [a welfare service].
If the applicant returns to PNG she would not have access to medical treatment to support her [medical] problem or help her through her mental health issues. As a result of being removed from Australia, this would cause the severe pain and suffering. The applicant’s medical conditions would deteriorate.
The applicant provided the following relevant documents with her application:
·Report from [a] Health Centre, [Town 1], dated [in] June 2001. It refers to the applicant being raped by men from [Tribe 3] and was brought into the centre for a semen count. The form lists the applicant’s husband as ‘[husband’s name]’.
·Lab. Sheet dated [the same day] indicating detection of sperm.
·Photograph of mobile phone containing text message (as indicated in statement).
·Discharge summary from [a hospital] dated [in] June 2013 in relation to applicant.
·Letter from [a doctor] dated [in] October 2012. It refers to the applicant’s [surgery] in February 2012 and indicates that she has a residual [condition] post surgery and this may require further surgical intervention. It indicates that the applicant needs to remain in Australia for management of her [medical condition].
·Letter from [the same doctor] dated [in] June 2012 in similar terms to the previous letter.
·Letter from [a second doctor], [from a] Local Health Network dated [in] June 2012 indicating that the applicant presented at [a] Hospital [in] June 2012 suffering from ongoing [related condition]. Investigations revealed that her [medical condition] is worse. It indicates that she has been suffering from mental health problems, especially depression for which she has been taking antidepressants.
·Letter from [a third doctor], [from a medical centre] dated [in] October 2012 indicating that the applicant is suffering from [medical conditions]. It indicates that the applicant’s mental health will deteriorate if she leaves Australia.
·Letter from [a fourth doctor] dated [in] December 2011 indicating that the applicant requires [surgery].
Whilst the applicant did not provide any supporting evidence concerning her mental condition as part of the current Protection visa application, the Tribunal does note a letter from a counsellor at [a welfare service] dated [in] September 2011 provided as part of the first Protection visa applicantion indicating that the applicant is suffering from a range of severe signs and symptoms associated with post-traumatic stress, depression and anxiety.
The applicant provided internet reports including: report dated [July] 2013 indicating that corruption is getting worse in the Solomon Islands; report dated [July] 2013 in relation to difficulties in the PNG defence force, police force and correctional service; report dated [in] 2013 making reference to a young woman being mutilated and murdered in [Town 1]; report dated [in] 2013 referring to, amongst other things, the pack rape of [a female] in [Town 1] and the murder of [a] tourist; report dated [in] 2013 making reference to uprisings outside of [Town 1]; report dated [in] 2013 concerning an attack by soldiers against students of [a tertiary college]; and report dated [in] February 2013 concerning witch burnings in PNG.
The Tribunal notes the following relevant matters elaborated by the applicant in the interview with the delegate of the Minister with respect to the current Protection visa application:
·Sometimes in PNG the applicant’s husband would hit her when she tried to talk back to him. In Australia he would not do anything too serious but in PNG he would behave differently. In 2008, in PNG he punched her in the face and she had a black eye because he said he paid a bride price.
·In response to a question of the delegate, the applicant stated that it is possible her husband might not be interested in her now if she returned to PNG, given that the relationship has broken down.
·The applicant was still afraid of the men who had raped her but was most afraid of her husband.
·The applicant indicated that, if she returns to PNG she might try to go back to her husband but his parents would say that they did not want her to come back. She also indicated that she did not intend to re-establish the relationship with her husband.
·The applicant claimed that, if she returns to PNG she would have to go back to her village; it would be more difficult for her to obtain medical treatment. She indicated she could not move to Port Moresby because only people with work went there. She would not have anywhere to stay and could not afford to stay there by herself. She feared her husband if the she stayed in Port Moresby.
The applicant made a new claim in the first Tribunal hearing. She claimed she discovered that the husband had met another woman with whom he had had a child. The applicant said that she does not want to go back to PNG because her husband has a another woman and will not seek the applicant. At other points, the applicant indicated that she fears harm because her husband will claim her as his possession as he paid a ‘bride price’ to marry her and even though he has another wife, he will still maintain that the applicant is his. The applicant claims that her husband will harm or kill her. She claims that she would have to find out where he is. The applicant claims that one of the reasons why she was suffering harm is because she cannot have children. The applicant indicated that when a man marries another woman, then both the women and the men may try and kill each other.
Canvassing of key claims and issues – prior claims, interview and hearings
Consistency of claims from invalid PV application
The applicant and her [husband] lodged a Protection visa application that was invalid in November 2010. That applicant claimed protection on the grounds that she feared harm as a result of her refusal to marry in an arranged marriage. No reference is made to tribal wars or the applicant being raped. It was claimed by the applicant as part of the first valid protection visa application, that these claims were false and made up by a pastor assisting them.
As noted in the decision of the Tribunal with respect to the first valid Protection visa application, the applicant claimed that as part of the first application a pastor assisted with the form and he asked questions and she provided answers. The applicant’s husband, however, indicated that they signed blank forms which the pastor later completed.
That decision records that the [husband] claimed in a response to s.424A invitation that he had no knowledge of the false claims until they were told of this by the Department of Immigration. In contrast, the applicant gave evidence that she stated that the pastor had told her at the time of lodgement what was set out in the application form. She told him that it was incorrect but permitted him to lodge the form anyway.
In the second Tribunal hearing with respect to the current application, the applicant responded to the inconsistency between the first valid protection visa application and subsequent claims by indicating that she had been asked questions in three hearings and interviews. She said that at the time of the 2010 application, she was with her husband and so did not give the story to the officer. When the Tribunal indicated that other evidence indicated that her husband was aware of the rape at that time, she said that that was true. She said that back in PNG things are handled differently and there could be violence against her, and her husband could create difficulties. This was not an explanation which explained the inconsistency, in the Tribunal’s view.
The Tribunal also notes that claims by the applicant that she was either looked for or harmed by [Tribe 3] when she was in Port Moresby were also claims known by the husband, who gave evidence of this as part of the first protection visa application. That being the case, the Tribunal sees no reason that the applicant would have felt reluctant on the basis of the knowledge of her husband, in making these claims as part of the first invalid Protection visa application.
The Tribunal considers that the failure of the applicant to make claims in the invalid 2010 Protection visa application concerning the rape and fear from [Tribe 3] is undermining of the credibility of those claims.
Rape and surrounding circumstances
In first hearing, the Tribunal canvassed with the applicant the documents that she provided from 2001 indicating her treatment for the rape which she indicates occurred. The applicant indicated that she brought these documents with her to Australia and hid them. When asked why she did not provide these documents as part of her first valid protection application, she said that she did not want her husband to see them. It was noted that her husband already knew about the rape. She agreed that this was the case but said that the reports would make him angry. The Tribunal noted to the applicant that the report from 2001 refers to ‘[his name]’ as her husband, but this was many years before they were married. The applicant responded that they must have written his name. The applicant indicated that she got the report in 2002. The applicant was asked whether she had this report written after she came to Australia and she answered yes. When asked whether she had had the report written so she could provide it with respect to her application the applicant said no. The applicant then said she did not have medical treatment after the rape and that she got the document when she applied for the visa. The applicant said she was sorry for previously saying that she brought the document with her to Australia. The applicant maintained that the rape actually happened.
Therefore, the applicant has admittedly misled the Department and the Tribunal with documents supposedly corroborating her rape. The Tribunal notes the applicant’s maintenance that the rape did, in fact, occur.
Inconsistencies in the applicant’s evidence concerning medical treatment for the rape are also apparent from information contained in the decision of the Tribunal with respect to the first valid application. That decision notes that the applicant has variously claimed that she did not seek any treatment, that she sought medical treatment six months after the rape in 2001, and that she sought medical treatment in 2008. In the second Tribunal hearing, this information was put to the applicant in accordance with the procedural requirements of s.424AA of the Migration Act. It was noted to the applicant that this was relevant because there are inconsistencies as to whether, and when, medical treatment was sought concerning the rape, and the consequence of relying on this information could be to question the applicant’s credibility about the rape itself. The applicant responded that, when she was raped, she did go to the hospital, but was afraid to tell her husband. The Tribunal noted to the applicant that she was not with her husband at that point. The Tribunal asked the applicant when it was, after the rape, that she went to the hospital, and she said that it was two or three days later. The Tribunal is of the view that this explanation only adds to the inconsistencies in the evidence on this issue.

The decision of the Tribunal with respect to the first valid application contains inconsistent information relating to the circumstances surrounding the rape. It notes that the applicant at the Departmental interview claimed that she was raped when she was alone by river. She initially claimed that she was raped in 2001, but later claimed that it was in 2000. In the Tribunal hearing, as recorded in the Tribunal decision, she claimed that she was with [a number of] other people, initially claiming that they were other young women, but then later said that they were very small children, and then they were young girls about [age] years old. In the second hearing, the Tribunal put this information to the applicant in accordance with the procedural requirements of section 424AA of the Migration Act. It noted that this information was relevant because it identified many inconsistencies in the applicant’s evidence concerning the rape, and that the consequence of the Tribunal relying on this information could be to question the credibility of her evidence concerning the rape. The applicant responded that people have been helping the applicant to develop her account. She indicated that she has been asked too many questions on the issue. She indicated that she was raped when she was [age].
Whilst the Tribunal acknowledges the understandable trauma and confusion which would occur following a rape, the Tribunal is concerned at the significant lack of consistency in the applicant’s evidence over the timing and circumstances of the rape and the obtaining of medical treatment after the rape. Whilst some minor inconsistencies are understandable, such as confusion of dates, issues such as to whether the applicant was alone or with others, and the composition of those other people, or whether or not the applicant had medical treatment, are significant factors. Given the impactful nature of the event, the Tribunal is of the view that details of this nature would be etched in the applicant’s mind.
The Tribunal is of the view that the many inconsistencies in the evidence concerning the circumstances of the rape and medical treatment received after it cast doubt on the credibility of the applicant’s claims to have been raped.
Difficulties faced by the applicant in Port Moresby
The decision of the Tribunal with respect to the first valid Protection visa application indicates that the applicant, in the Departmental interview, indicated that [Tribe 3] had not come to Port Moresby, although she was scared that they would, and that she did not go around the city for fear of the tribe. The decision indicates that, in the Tribunal hearing, she claimed that members of the tribe would watch her, but later claimed that they did not do this, she just feared that they would. The applicant’s husband gave evidence that members of the tribe had assaulted or attacked the applicant and tried to kidnap her from a bus stop.
The Tribunal put this information to the applicant in the second Tribunal hearing in accordance with the procedural requirements of s.424AA of the Act. It noted that the information was relevant because there were internal inconsistencies in her own evidence as well as inconsistencies between her evidence and that of her husband, relating to the presence of members of [Tribe 3] while the applicant was in Port Moresby, and harm from those members. It noted that the consequence of the Tribunal relying on this information could be to question the credibility of claims relating to harm, threats or fears of harm from [Tribe 3] while the applicant was in Port Moresby. The applicant responded that it is true that members of the tribe were looking around for her in Port Moresby.
The Tribunal is of the view that there are significant inconsistencies in this evidence which go to the applicant’s credibility as to whether [Tribe 3] were looking for the applicant or threatening or harming her in Port Moresby.
Relationship with husband in Australia, his whereabouts, and his new relationship
The applicant’s written claims as part of the current Protection visa application state that her husband stopped talking to her and was aggressive towards her. The applicant in the interview with the Department with respect to the current application, said that her husband never seriously hurt her in Australia but there would be occasions when he would not talk to her for a week and would not leave the house.
In that interview, she said that, sometimes in PNG, the applicant’s husband would hit her when she tried to talk back to him. In Australia he would not do anything too serious but in PNG he would behave differently. In 2008, in PNG he punched her in the face and she had a black eye because he said he paid a bride price.
In the second Tribunal hearing, the applicant indicated that there had been no contact from the husband since the last Tribunal hearing.
The applicant, on her own evidence, has had no contact with her husband since he left her in May 2013, other than the abusive text message in June 2013.
The applicant is not certain if her husband has returned to PNG. In the second Tribunal hearing, the Tribunal noted to the applicant, in accordance with the procedural requirements of s.424AA of the Act, information contained in a Movement Record of the Department of Immigration relating to the applicant’s husband which does not show the applicant’s husband as having left Australia. The applicant indicated in the first Tribunal hearing that her husband was known by no other names. The Tribunal indicated that this information was relevant because it suggested that the applicant’s husband had not taken any action to contact, threaten or harm the applicant (other than the one text message in June 2013) in the more than two years since he had left her, and while in Australia, which was not suggestive of a desire by the applicant’s husband to harm the applicant either in Australia or PNG. The consequence of the Tribunal relying on this information would be one factor in determining that there was not a real risk of significant harm to the applicant from her husband.
The applicant at first indicated that both she and her husband had changed their mobile numbers. In response to a query from the Tribunal, the applicant then said that only her husband had changed his mobile number. She said that she does not know whether he is still in Australia. She indicated that in, 2012, he had another woman and was not interested in the applicant. She indicated that he is angry still at her inability to have children.
The applicant indicated in the first Tribunal hearing that she found out about her husband’s relationship with another woman, from that woman with whom she communicated on Facebook. She understands that the woman has returned to [Country 4] with the child. The applicant indicated that she deleted the Facebook record of her communication with this woman and that she regrets this now.
Harm from husband’s family
The applicant indicated in the first Tribunal hearing that her husband’s family paid a bride price and will still regard the applicant as belonging to her husband. It is claimed that they will want the bride price back and that the applicant does not have the means to pay this. The Tribunal asked whether she was aware of her husband’s family getting in contact with her own parents in her village. The applicant claimed that she had no idea as she was in Australia. It was put to the applicant that she was simply guessing as to what her husband’s family may do. She said that that is not the case. She said that his relatives have said that he is with you and has not had a child. If a bride price is paid then the applicant belongs to her husband.
Harm due to tribal warfare and living in Port Moresby
The applicant, as part of her first Protection visa application, indicated that her tribe, [Tribe 2], staged war against other tribes, and women and children suffered as a result with rape and murder common. Even though they moved to Port Moresby, the other tribes hunted them down and they lived in fear. Inconsistencies with this evidence are outlined earlier. [Tribe 3] had a war against [Tribe 5] and [Tribe 3] destroyed the land of [Tribe 5]. [Tribe 2] gave refuge to [Tribe 5] and this resulted in them being targeted by [Tribe 3].
The decision of the Tribunal with respect to the first valid Protection via application notes independent evidence concerning tribal warfare in the Western Highland which indicates that there was a major conflict in [year] between [Tribe 3] and [Tribe 2] tribes. The Tribunal indicated that current relations between the tribes were unknown. It noted that given the volatility of tribal conflict in PNG, it is possible that members of the [Tribe 3] may wish to harm members of the applicant’s tribe for assisting the arrivals in [year].
The previous Tribunal looked for independent evidence in relation to claims that tribal violence will follow the applicant to Port Moresby. It noted the following:
In two previous reports of February 2008 and October 2004, DFAT concluded that tribal fights/payback killings are normally contained in the specific geographic areas of the clans involved and do not extend to other parts of PNG; it was, however, aware of one instance where tribal conflict in the Highlands had extended to Port Moresby.[1]No reports were found that the Drai Wara and Rami Koki tribal activities extend to Port Moresby. The reports provided by the applicants referred only to other tribal groups from the Highlands. Reports on incidents of tribal violence in Port Moresby indicate that they normally arise from animosities triggered there, rather than as a result of incidents occurring on tribal lands.[2]
[1] Department of Foreign Affairs and Trade 2008, Country Information Report No. 08/7 – Papua New Guinea: RRT Information request PNG30111, 7 February; Department of Foreign Affairs and Trade 2004, DFAT Report No. 325 – Papua New Guinea: Response to RRT Information Request PNG16965, 6 October.
[2] See reports collated in question four of RRT Research & Information 2008, Research Response PNG33258, 15 May – C:\Documents and Settings\spasse\Local Settings\Temporary Internet Files\Content.IE5\Melb-A-Z\png33258.rn.doc; and question four of RRT Country Research 2004, Research Response PNG16965, 7 October – C:\Documents and Settings\spasse\Local Settings\Temporary Internet Files\Content.IE5\Syd2004\png16965.eh.doc.
No additional independent information is before the Tribunal which would suggest the likelihood of tribal violence in her village following the applicant to Port Moresby. The substance of this independent information was put to the applicant in the second hearing. When the Tribunal put to the applicant that this would suggest that there is little risk of from [Tribe 3] should she live in Port Moresby, the applicant indicated that she would have nowhere to live in Port Moresby. She indicated that she would not be able to get a job as she is not educated. The Tribunal noted that there are many jobs available that require little education. The Tribunal pointed out to the applicant that in Port Moresby she would be closer to necessary medical care. The applicant said that she would have to return to [Town 1].
When the Tribunal pointed out to the applicant that she had an uncle in Port Moresby (with whom she had previously lived), the applicant said that he was not strictly an uncle and he was no longer living in Port Moresby.
Delay in making a Protection visa application
The Tribunal asked the applicant in the second hearing why she waited 19 months from arrival in Australia to make her first Protection visa application. The applicant said that she knew nothing about a Protection visa and it was only when she was told about the visa by person from [Country 4] that she made the application.
Harm from being a women
When, in the first hearing, the Tribunal asked the applicant if she had more general claims about fearing harm based on being a woman in PNG, she indicated that women are subordinate to the man and that her husband will claim her because of the bride price. She will be repressed and this will affect her [medical condition].
Medical conditions
In the second Tribunal hearing, the applicant was asked about the current state of her medical problems. She indicated that she has had two operations, the last in 2012. She indicated that she is required to see a [specialist] every six months. She sometimes gets [related symptoms].
The Tribunal noted to the applicant in the second Tribunal hearing that under the definition of significant harm for the purpose of complementary protection criteria, there generally needed to be an intention by some person or body to cause harm to meet the relevant definitions. That being the case, the standard of health facilities in PNG would not generally result in an intention by any individual or entity to create harm to the applicant. The standard of health facilities is generally a product of the resources allocated by the state to the health system. The applicant responded by talking of the fear she had of her husband in returning to PNG. The applicant indicated in another part of the hearing that she would not be able to afford the cost of medical care.
Findings and assessment
The Tribunal is satisfied that the applicant is a citizen of PNG, and accordingly the claims will be assessed against PNG.
The Tribunal has significant credibility issues with key aspects of the applicant’s claims. Firstly, no claims were made in the first invalid Protection visa application that the applicant was raped or suffered or feared harm due to tribal wars. Claims on a completely different basis – an arranged marriage – were made. The Tribunal does not accept the applicant’s explanation for the failure to make those claims as part of her invalid Protection visa application. The applicant has admittedly provided fabricated evidence to support her claim of being raped. Whilst the Tribunal acknowledges the applicant has stridently maintained that she was in fact raped, and it is conceivable that she could have obtained fabricated documents to support an event that actually occurred, there is starkly inconsistent evidence as to the circumstances of the rape. In relation to harm or fear from [Tribe 3] in Port Moresby, the applicant has been internally inconsistent and also inconsistent with evidence provided by her husband as part of the first Protection visa application. The Tribunal is not satisfied that the applicant’s explanation for a number of these difficulties in the second Tribunal hearing adequately explain the inconsistencies.
The delay of 19 months in applying for a Protection visa is not consistent with the fact that the applicant left PNG in fear of the matters claimed. The Tribunal considers that had the applicant done so, she would have made enquiries about protection options at an earlier stage.
For all of these reasons, the Tribunal is not satisfied that the applicant has been a truthful witness in relation to being raped or in suffering a fear or threats of harm from [Tribe 3], or being monitored by them, either in [Town 1] or Port Moresby.
The Tribunal accepts that the applicant has been diagnosed with post-traumatic stress, depression and anxiety. However, that is not a diagnosis which overcomes the many difficulties with the applicant’s evidence. Whilst the claims that the applicant was raped and sought out by [Tribe 3] could well lead to post-traumatic stress, depression and anxiety, the diagnosis of these conditions itself does not confirm that those events occurred. There is a multitude of other reasons for such conditions.
The Tribunal is not satisfied that there is any past harm or threats of harm, that has been suffered from [Tribe 3], including being raped, or being monitored by the Tribe, that creates a real risk of significant harm to the applicant should she return to PNG.
The Tribunal considers that the applicant lived safely in Port Moresby before coming to Australia without any harm or threats of harm from [Tribe 3]. The Tribunal does not have independent information to enable it to be satisfied that tribal conflict in the Western Highlands would spread in a way to affect the applicant in Port Moresby. The independent evidence it does have supports a contrary conclusion. The Tribunal is not satisfied that there is a real risk of significant harm to the applicant from generalised tribal violence in her home area to the applicant in Port Moresby.
In considering the applicant’s home area for the purpose of this assessment, the Tribunal considers that the applicant has two home areas – her village, [Town 1], in the Western Highlands where she grew up and lived until about 2000, and Port Moresby where she lived from about 2000 until 2009. The applicant has variously claimed that she would live either in [Town 1] or Port Moresby should she return to PNG. The applicant’s has expressed concern that she could not live in Port Moresby due to being at risk of harm from her husband, the expense, and the fact that she could not get a job, notwithstanding that it is closer to medical facilities. In relation to the former, the Tribunal is not satisfied that the applicant is at a real risk of significant harm from her husband in PNG, as discussed below.
Given her medical conditions, she will have a strong incentive to remain in Port Moresby to access medical treatment.
The Tribunal accepts that the applicant is uneducated and therefore may only be in a position to obtain a low skilled job in Port Moresby. The Tribunal acknowledges that the applicant’s health problems may pose constraints in working, although the applicant made no claims to this effect. The Tribunal is inclined to think that the applicant would be in a position to obtain work of some description in Port Moresby and support herself, although acknowledging that there may be financial challenges. Whilst the Tribunal is sympathetic to any future economic challenges facing the applicant, such challenges, and the difficulty of obtaining employment, do not fall within any definition of significant harm for the purpose of the complementary protection criterion.
The Tribunal is prepared to accept, for the purposes of this decision, that there is a real risk of significant harm to the applicant in [Town 1] as a result of tribal violence. However, as the Tribunal is of the view that the applicant has two home areas, the Tribunal is also of the view that the applicant would be able to live in her second area of Port Moresby without a real risk of significant harm. The Tribunal is not satisfied, based on the independent evidence, that there is a real risk that tribal warfare in [Town 1] would follow her to Port Moresby.
The applicant claims that she faces harm from her husband should she return to PNG, due to her being still considered his wife and belonging to him, given the payment of a bride price, anger at the applicant being childless, the threatening text message and past physical harm while living together in PNG. The applicant fears that she will be harmed or killed by her husband.
The Tribunal is of the view that the applicant is conflicted in terms of her relationship with her husband, variously indicating a fear of him, that she will force her to come back to him as he has paid a bride price, but has also indicated that she wants to resume a relationship with him and that she will be compelled to look for him. She has indicated that one source of harm might be the fact that he will not have her back. The Tribunal considers that this conflict is understandable given the volatility and emotion of human relationships. The issue the Tribunal must consider is whether the applicant faces a real risk of significant harm, as defined, from her husband.
The Tribunal has noted that evidence suggests that the applicant’s husband remains in Australia. The Tribunal has some suspicion over the authenticity of the text message claimed to be sent by the applicant’s husband in June 2013, given credibility issues with the applicant’s evidence already identified, and her admitted fabrication of other documents. It notes that the text indicates the applicant’s husband saying that he would be returning to PNG, even though he did not do so. However, even if the Tribunal were to accept that this text message was sent by the applicant’s husband, the applicant’s husband has made no other attempt to contact or harm the applicant, or to seek that the applicant return to being his wife, or to seek repayment of the bride price. The Tribunal notes that, on the applicant’s own evidence, her husband never physically mistreated her during their time in Australia.

Whist the Tribunal has some scepticism with the applicant’s claims that she was physically mistreated while in PNG, given other credibility issues, the Tribunal is prepared to accept that there was mistreatment.
The applicant has indicated that her husband would feel constrained in taking adverse action against the applicant in Australia, due to the superior justice system in Australia that he would not feel so constrained about in PNG. The Tribunal considers that, if the husband were inclined to act in a way to cause significant harm to the applicant if they were both in PNG, that he would have done more in the more than two years they have been living apart in Australia than send one abusive text message, notwithstanding a more efficient police and justice system in Australia.
The Tribunal does not consider that what took place when the applicant and her husband were living together as man and wife in Port Moresby leads to a risk of physical harm to the applicant should she return to PNG, and, if the husband were also there, given the changed circumstances of the relationship, the fact that they are not living together, and the absence of contact by the husband with the applicant in Australia over the last two years other than one abusive text message. The Tribunal is not satisfied that there is a real risk of significant harm to the applicant on return to PNG, if her husband is there, based on what happened when they were living together as man and wife a number of years ago.
The Tribunal is not satisfied, given all the evidence, that the applicant’s husband poses a real risk, in PNG, of physically harming the applicant, forcing her to be with him as his wife, or cause her any form of significant harm as defined in the Act. The Tribunal does not consider that the pain that the applicant would feel if she wants to go back to her husband but be rejected, constitutes significant harm for the purposes of the Act.
The Tribunal is not satisfied that there is a real risk of significant harm to the applicant from her husband including: physical harm; the husband forcing the applicant to return to him; or pain to the applicant from her husband rejecting her.
In terms of the applicant’s claims that her husband’s family (or the husband) will harm her or seek repayment of the bride price, the Tribunal considers this is entirely speculative. On the evidence provided, the Tribunal is not satisfied that the applicant’s husband’s family pose a real risk of causing her physical harm. In relation to the repayment of the bride price, if the applicant’s husband or his family had wanted this repaid, the Tribunal considers that the applicant would have been contacted already, given that the applicant’s husband has her mobile phone number. Alternatively, the Tribunal considers that the applicant’s husband’s family would have contacted the applicant’s family. Had they done so, the Tribunal considers that the applicant would be aware of this. The Tribunal is not satisfied that the applicant faces a real risk of significant harm from her husband’s family or husband himself, either in terms of physical harm or repayment of the bride price.
In terms of fears of the applicant on the basis of her being a woman, when this was explored with the applicant in the first Tribunal hearing she referred only to the fears she faced in relation to her husband and his family. The applicant, in her original valid Protection visa application, had indicated that she feared for her life in PGN from witchcraft, rape and violence against women. The Tribunal notes the independent information contained in the decision of the delegate of the Minister (a copy of which the applicant has provided to the Tribunal). That information indicates: violence towards women is prevalent in PNG; domestic violence is rarely addressed in public; governments have been slow to address the issue; there has been inadequate policing of the issue; and, it is rare for violence against women to be brought before courts.
Whilst the Tribunal acknowledges that violence against women is a problematic issue in PNG, the Tribunal is not satisfied that the independent evidence establishes that every woman in PNG faces a real risk of significant harm on the basis of being a woman. The Tribunal considers that the applicant’s own risk profile needs to be considered. As indicated, the Tribunal is not satisfied that the applicant has been raped or is the subject of ongoing adverse attention from [Tribe 3]. The Tribunal is not satisfied that the applicant is at a real risk of significant harm from her husband or her husband’s family. The Tribunal is not satisfied that the applicant has any particular attributes or profile that puts her at a real risk of significant harm because she is a woman should she return to PNG. In particular, the Tribunal is not satisfied that the applicant would attract any adverse attention from [Tribe 3] in Port Moresby.
The Tribunal accepts that the applicant has a [medical] condition which has required surgery in Australia. The Tribunal accepts that the applicant has been diagnosed with a number of mental health conditions. The Tribunal accepts that the standard of medical care in Australia is likely to be superior to that in PNG. However, as indicated to the applicant in the second Tribunal hearing, difficulties which arise due to the general standard of a country’s health system which could result in harm in terms of inferior health treatment, are generally not matters which would fall within the definition of significant harm for the purpose of the complementary protection criterion. This is because there is no act or omission by the state that is intended to cause harm. It is simply a product of the resources that are able to be allocated to the health system. That being the case, any harm would not constitute either ‘cruel or human treatment or punishment’ or ‘degrading treatment or punishment’ which require an act or omission which is intentionally inflicted or an act or omission which is intended to cause extreme humiliation, respectively. Nor would the harm fall within any other defined category of significant harm for the purposes of the Act.
As sympathetic as the Tribunal is to the applicant’s health conditions, it must find that any harm which she would suffer in terms of treatment of her [medical] and mental health conditions due to the state of the PNG health system is not harm which falls within the definition of significant harm for the purpose of the complementary protection criterion.
The Tribunal is not satisfied that there is a real risk of the applicant suffering significant harm, as defined, as a result of the standard of the PNG health system.
The applicant has made a claim that, as a result of being removed from Australia, this would result in severe pain and suffering. To the extent the applicant is claiming that she will be moving from an easier to more difficult life in returning to PNG, the Tribunal is not satisfied that there would be the intention of any individual or entity to cause the applicant harm in the act of her being removed to PNG. To that extent, any harm would not fall within any of the enumerated definitions of significant harm, most particularly cruel or inhuman treatment or punishment or degrading treatment or punishment.
In summary, in relation to the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, there is a real risk she will suffer significant harm due to: her being raped in or around 2001; ongoing adverse attention from [Tribe 3]; tribal conflict more generally; physical harm from the applicant’s husband; physical harm from the applicant’s husband’s family and the demand of the return the bride price; pain from her husband rejecting her; the state of the PNG medical system impacting on the applicant’s medical conditions; financial difficulties in resettling in PNG including difficulties finding accommodation and getting a job; the difficulty in leaving Australia; or for the any other reason.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the complementary protection criterion. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
David McCulloch
Member

[2015] AATA 3754

13 November 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction