1501572 (Refugee)

[2017] AATA 304

1501572 (Refugee) [2017] AATA 304 (13 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501572

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Andrew Mullin

DATE:13 February 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 13 February 2017 at 2:53pm

CATCHWORDS

Refugee – Protection visa – Papua New Guinea – Particular social group – Women who have left an abusive domestic relationship – Domestic violence – Single unprotected women – Effective protection – Internal relocation – Jealous and violent former partner – Delay in applying for protection

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

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

1. 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).

2. The Applicant, who claims to be a citizen of Papua New Guinea, applied for the visa [in] July 2014 and the delegate refused to grant the visa [in] January 2015.

3. The Applicant was represented in relation to the review by her registered migration agent.

   RELEVANT LAW

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant.  The Tribunal has had regard to the material referred to in the delegate’s decision record, a copy of which was attached to the application for review, together with other information available to it from a range of sources.

10. In her protection visa application the Applicant claims, in summary:

    ·She was born in [Town 1], West New Britain, Papua New Guinea, in [year].  She lived at an address in [Town 2], Morobe Province, from her birth to July 2011 when she departed for Australia.  She received [number] years of formal education in Papua New Guinea, ending in June 2011.  Her father is deceased and her mother and [number] siblings live in Papua New Guinea.

    ·She began a relationship with her partner, [Mr A], in 2009.  They were in love at first but the relationship turned abusive.  He would call her filthy names, slap and punch her and spit at her.  He was very controlling.  He burned her clothes on one occasion and on another, in about September 2010, he punched her in the face.  Her family took her to a police station to report this incident and [Mr A] was arrested, only to escape later.

    ·[Mr A] stalked her after the incident.  He would come to the family home looking for her and once assaulted her there, again punching her on the nose.  He continues to visit the family home, swearing and cursing and threatening her mother. 

    ·She had lived in Australia previously as a dependent of her father, who died in a car accident in [city] in [year].  This gave her the idea to escape to Australia and she travelled to [city] on a student visa [in] July 2011.

    ·She knows [Mr A] will kill her if she returns, despite his having been arrested by the police.  He is angry that she left Papua New Guinea, is not in custody and is free to do as he wishes. 

    ·The authorities cannot help her because they do not know where [Mr A] is living.  They have tried and failed to find him.

11. Attached to the application are copies of:

    ·General character references provided by the Applicant’s educational institutions and her church.

    ·The Applicant’s Australian tax records.

    ·A letter from the Papua New Guinea police [specified] Headquarters, dated [in] June 2014.  The writer is a [Detective A], from the office of the [specified branch].  He states that the Applicant sought the assistance of police at [Police Station 1], on or about [a date in] September 2010, presenting with bruises and a bleeding nose.  She complained of constant abuse and attacks on her and her family by [Mr A].  The suspect escaped police arrest, despite follow-up at his last known address.  The Applicant’s mother has complained that [Mr A] has been harassing and threatening her.  She sought help from her lawyers, who wrote to [Mr A].  The writer is concerned about the Applicant’s welfare, wellbeing and safety.  He has assessed that the threats are real and if protection action is not taken she would face being killed. 

    ·An affidavit in support of an application for an interim protection order in [Court 1], signed by [name] on [a date in] June 2013, apparently produced with the assistance of the assistance of [Agency 1].  She states she is the Applicant’s mother and that her daughter entered into a relationship with [Mr A] between 2010 and 2011.  The relationship did not last, due to [Mr A’s] constant abuse and assaults on her daughter on more than four occasions.  He has been constantly assaulting, pestering and annoying her daughter with indecent and defamatory words.  He frequently enters her residence and loudly insults her and her daughter with indecent and abusive words.  He often sends indecent mobile text messages to assault, defame and provoke her.

    ·A letter from the Papua New Guinea [Agency 1], dated [in] July 2014 and signed by [Senior Official A].  The writer states that the Office has been asked to provide a brief on the problems the Applicant has suffered with her fiancé (sic) since 2009.  The relationship appears to have deteriorated to the extent that the fiancé is physically violent toward her.  ‘The threat to her safety and security is still very much current and impending with the guy being constantly dodging the Police.’  She has approached the Office for assistance to obtain an interim protection order.  The application has been made and has been granted.  The police in [Town 2] were given the order to serve on the fiancé but he has gone into hiding.  ‘This does not augur well for the young lady as the threat to her existence has clearly intensified by the disappearance of the fiancé.  It is obvious that this young lady is currently at great risk and any assistance that is given to her to avoid this threat would greatly assist her cause.’

12. The Applicant expanded on these claims at a protection visa interview [in] January 2015.  She was asked a number of questions about her relationship with [Mr A], the circumstances in which he was sought by the police after she complained to them of having been assaulted by him, her reasons for leaving Papua New Guinea and travelling to Australia and further incidents of harm experienced by her family since her departure.  Asked about the documents she had provided from the police and [Agency 1] and the affidavit signed by her mother she appeared unfamiliar with their contents.  

13. On 31 October 2016 the Tribunal received a submission from the Applicant dated 12 October 2016 together with a statement dated 5 August 2015.  In these documents she reiterates the account of her experiences set out in her protection visa application and adds, relevantly:

    ·[Mr A] has been approaching her mother in public and cursing her.  He hates her for having sent her daughter to Australia.

    ·She fears that if she returned to Papua New Guinea she would be tortured, and could be killed, by [Mr A].

    ·Even if she were to relocate to another Province in Papua New Guinea [Mr A] would definitely find her and harm her.  There is no place in the country where she could be safe from him.

    ·The Papua New Guinea authorities are powerless to protect her.

    ·In Australia she is in a defacto relationship with [Mr B], who has been granted [a permanent visa].  [Certain PNG people] know of his relationship with her and she would be at risk of harm from them if she were to return to Papua New Guinea.

14. Attached to the submission is an assessment of the Applicant prepared by a registered psychologist, [Psychologist 1], dated [in] October 2016.  She is assessed as suffering from [two conditions].  Her mental health will continue to suffer if she returns to Papua New Guinea. 

    Tribunal hearing

15. The Applicant appeared before the Tribunal on 1 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s defacto partner, [Mr B].

16. The Applicant’s evidence was, in summary:

    ·She left Papua New Guinea in July 2011 when her mother sent her to Australia on a student visa to escape from her abusive relationship with her then-boyfriend, [Mr A].  She had feared for her and her family’s lives.  Her boyfriend threatened her, beat her and harassed her emotionally and physically.  She was depressed and feared something bad would happen to her.

    ·Asked why [Mr A] would have done these things to her she said he was very controlling over her if she did not listen to him, give him money or do things he asked her to do.  He had an advantage over her as there was no father figure in her family who could protect her.  It was easier for her to submit herself to him, until she began to suffer physical harm.  She did not fear harm in Papua New Guinea from anyone else.

    ·She confirmed the accuracy of a summary I made of the claims advanced in her protection visa application about her experiences in Papua New Guinea.  Asked about her home in [Town 2] between 2009, when she met [Mr A], and her departure for Australia in 2011 she confirmed that the house was owned by her mother.  The family was originally from the Highlands but they moved to [Town 2] after the death of her father.  During this period she lived there with her mother and her [number] siblings.  Her [named siblings] are [in tertiary education] in Port Moresby while her [other] siblings are attending [School] and living with her mother in [Town 2].  She had no relatives in [Town 2], although there were ‘wantoks’ (affiliated by clan or language group) there.

    ·Asked about [Mr A] she said he seemed a nice person at first but later began to show aggression to her when she would not comply with his requests.  He lived with his [Relative A] in a village in Chimbu Province.  Asked which village this was she said she did not know.  To the suggestion that this would have been an important piece of information she might be expected to have learned in such a relationship she said there are many different languages in Papua New Guinea and the issue was not very important for her.  She confirmed she had met [Mr A’s] [Relative A].  Asked about his employment she said he worked full-time as [an occupation 1] for a private [company], [Company 1].  He was in this job throughout their relationship but she did not know how long he had been in it before she met him.  Asked if she knew his friends she said she had met some of them but did not know them personally.  Asked about his financial circumstances she said his job did not pay much and he spent all his money on drink.  She thought he also used drugs but did not know which drugs these were.  S

    ·Asked how she had discovered that [Mr A] had a criminal record and had been to jail she said she heard about it from one of his friends, a person named [Mr C].  [Mr A] confirmed it to her when she asked him about it but was very aggressive.  She had been too afraid of [Mr A] to ask [Mr C] for any of the details of the offence he had committed but she had also heard about his record from the police when she complained to them after he hit her.  Asked if she had ever found out about the offence for which he was jailed she said she did not know but went on to suggest it had something to do with drugs.

    ·I noted that one of the reasons the delegate doubted the truth of her claims was that in the interview she was unable to provide much specific information about [Mr A], including when it was they first met, a lack of knowledge which also seemed evident in some of her responses at the hearing.  I also noted that her evidence that he continued in his employment throughout their relationship was in conflict with the information she provided at the interview, to the effect that he lost his job while they were together.  She said the information about his having lost his job came from other people, not from [Mr A] himself.  I put to her that her earlier evidence that he was continually employed seemed quite clear.  She said she did not know for sure whether he was working or not.  I put to her it seemed unusual that in what she described as her first mature relationship she would not be able to provide the date or even the month when she and [Mr A] first met.  She said she could not remember.  Asked how she and [Mr A] first met she said she used to see him around in [Town 2] and first met him at a [public event]. 

    ·She confirmed her claim that after she was assaulted by [Mr A] her mother took her to the police to make a complaint and the police then tried to arrest him.  He was caught, put in jail and then escaped.  At the end of 2010 they met again and the relationship resumed.  Asked why she had returned to him she said this was the only way she could avoid him harming her, and that the police could not protect her.  I put to her it seemed difficult to understand how it was that, with the police looking for him after he escaped from jail, [Mr A] would return to her and resume his relationship with her.  She said that in Papua New Guinea it is not possible to be sure that the police will turn up within ten minutes of being called.  When he reappeared they called the police but nothing happened.  She added that [Mr A] is not afraid of anyone.  I put to her it was difficult to understand how the police would not have been able to find him if he had continued to live with his [Relative A] and work in the same company.  She said that, unlike in Australia, in Papua New Guinea the police would not persist in visiting a home looking for someone over a matter which they did not regard as important.  If they are bribed they will act once, but not again. 

    ·I put to her that her claim that the police were not genuinely trying to help her seemed to be in conflict with the documents she had submitted indicating that they and [prosecutors] were concerned about her safety and that an interim protection order had been taken out for her.  She said they tried to track [Mr A] down but he was not home when they arrived, and they could not find him.  To the suggestion that it would not have been difficult for them to locate him at the place where he worked as [an occupation 1] she said they told her that tried to do so but he was not there.  They told her about these search efforts after they were able to find and arrest him, three weeks later.  She did not know where he was jailed but thought it was in [Town 2] town.  She was later warned by the police that he escaped from jail. 

    ·Noting that the affidavit signed by her mother in June 2013 claimed [Mr A] was still visiting the family home and assaulting her and the Applicant I asked why she would claim this was still happening two years after she (the Applicant) left Papua New Guinea.  She said her mother has had only a limited education.  I noted that the affidavit bears a stamp indicating she was assisted by [an agency].  She said her mother was simply explaining what she had gone through. 

    ·Asked why it had taken her over a month to leave Papua New Guinea following the grant of her student visa [in April] she said she arranged to arrive a week before the start of her course.  I put to her that this did not seem consistent with her claim that she was escaping to Australia in fear of a man who was trying to kill her and who did not care that the police were searching for him.  She said she had to sort out her fees and other things before she left.  I put to that she would not have been granted a student visa unless her financial capacity had been established.  She said her mother had to sort out a few things before she could leave.  I put to her that all the paper work associated with her visa would have been finalised before the visa was issued.  She repeated that her mother needed to sort things out and, when asked which things these were, referred once more to her tuition fees.  Reminded that she would not have been given the visa without this issue being resolved she then said she had paid some of her fees but could not just leave, adding that she had to sort out her accommodation in Australia.  She was just happy that her mother managed to get her out.

    ·I put to her that the three year delay between her arrival in Australia and her application for a protection visa could cast doubt on her claim to have a genuine fear of being killed in Papua New Guinea.  She said she had never returned to Papua New Guinea, for fear of [Mr A].  She had not been aware of the existence of protection visas and she had been able to remain in Australia as her student visa was renewed.  Noting that she was highly educated, intelligent and articulate in English I put to her that it seemed hard to believe it would have taken her three years to discover there was such a thing as a protection visa.  She said that by the time she discovered this her visa had been renewed and she felt safe here.  Asked what had prompted her to apply for protection she said her student visa was about to expire.

    ·I put to her that, overall, there seemed some degree of improbability in her claims regarding her relationship with [Mr A].  She had not been engaged to him, there was no traditional marriage involving the payment of a bride price, and, at most, they were simply boyfriend and girlfriend for a fairly limited period.  Their relationship had ended some years ago.  Despite this, she was claiming he is continuing to visit her home, threatening her mother and saying he would kill her if she returned.  I suggested the question was whether, in these circumstances, it was likely that he would harm her if she returned to Papua New Guinea, particularly if he had been in trouble with the police for doing so in the past.  She said he has no fear of the police.  He knows there is no father figure to protect her as her [brother] is away studying in Port Moresby and he has no respect for her mother.  Noting that the police in Papua New Guinea have a well-deserved reputation for brutality, and that they had taken an interest in her case, I asked why [Mr A] would not be afraid of them.  She said she did not know why this was so.

    ·Asked why she could not simply relocate to Port Moresby to live with her brother if she feared harm in [Town 2] she said she could not do so as he is living in a dormitory.  Asked why she and her brother could not find rented accommodation she said he could not protect her as [Mr A] would do anything to find her, wherever she was.  I asked how [Mr A], who is not a wealthy, influential or important person, could reach out to her in Port Moresby.  She said Papua New Guinea is a small place and he could go there.

    ·The Tribunal heard witness evidence from [Mr B] who said he and the Applicant met in Australia in 2013 and are in a defacto relationship.  He had heard from her about the problems she had experienced from [Mr A], her former boyfriend in Papua New Guinea.  This person had been mistreating her mother and siblings.  He had witnessed telephone calls from [Mr A] to the Applicant and had heard him abusing her and threatening to harm her.

    ·The witness confirmed that he had been granted [permanent residence].  He said the Applicant would [be] at risk of [harm] if she were to return there as his partner.

1. The advisor submitted, in summary, that:

   ·While there might be some questions about aspects of the Applicant’s account of her experiences, the Tribunal should bear in mind that she has some difficulties in expressing herself.  She has answered in good faith and has had no intention to mislead the Department or the Tribunal.  Undue weight should not be placed on these issues and she should be accepted as, by and large, a credible witness.

   ·[Mr A] is a particularly problematic individual and the Applicant would be unable to find safety from him by relocating to another part of the country.

   ·Although the Applicant had been able to obtain documents from [Agency 1] and the police showing that they were interested in her case, this did not demonstrate that they would actually take any effective action to protect her.

   FINDINGS AND REASONS

2. On the basis of the photocopied pages from her passport on the Departmental file I accept that the Applicant is a citizen of Papua New Guinea and that her identity is as she claims it to be.

3. The Applicant has not articulated a Convention ground for the harm she claims to fear in Papua New Guinea. I accept, however, that her claims can reasonably be seen as having a connection with the particular social group able to be defined as ‘women in Papua New Guinea who have left an abusive domestic relationship.’  I accept that such an entity can be said to exist in Papua New Guinea as a particular social group, in the sense that it is sufficiently identifiable by characteristics or attributes common to all its members, other than a shared fear of persecution (since the act of leaving, rather than the antecedent experience of violence, is the defining characteristic) which distinguish it from society at large.  I also accept that the Applicant can be said to be a member of such a particular social group, given her claim to have left a relationship with a jealous and violent partner.

4. I note that the country information available to the Tribunal provides general background support for the Applicant’s claim to fear violence at the hands of her ex-partner [Mr A].  Among this information is a comprehensive and recent report prepared by Medecins Sans Frontières[1] which states, in part:

   [1] ‘Return to Abuser : Gaps and a failure to protect survivors of family and sexual violence in Papua New Guinea’, Medecins Sans Frontières, March 2016.

   In Papua New Guinea, women and children endure shockingly high levels of family and sexual violence, with rates of abuse estimated to be some of the highest in the world outside a conflict zone.

   This is backed up by the experience of Médecins Sans Frontières/Doctors Without Borders (MSF), which has treated 27,993 survivors of family and sexual violence in the country since 2007.

   In 2014 and 2015, some 3,056 people sought care for the first time in MSF-run Family Support Centres in the capital, Port Moresby, and in Tari, in the Highlands region. Their accounts provide important insights into the patterns of intimate partner violence, family violence and sexual violence in these areas. Their experiences suggest that large numbers of people are suffering grave physical and psychological wounds in the very place they should feel the safest – within their homes and families.

   The overwhelming majority – 94 percent – of these patients were female. Most had been injured by their partners, family or community members, and in more than a quarter of all incidents involving intimate partners, the women had been threatened with death. Nearly all – 97 percent – of those patients had injuries that required treatment. Two in three had been attacked with weapons, including sticks, knives, machetes and blunt instruments.

   Children are also exposed to serious violence from a very young age, MSF’s data shows, most often at the hands of family members or others they know in their community. More than half of all MSF consultations for survivors of sexual violence were with children, around one in six of which were with children younger than five years. Children also made up one in three of all family violence consultations in Port Moresby, and one in eight in Tari. 

   Forty-nine percent of patients who sought care following sexual violence said the abuse – in most cases, rape – occurred at home. The younger the survivor, the more likely it was that they were abused at home. For most patients, the perpetrator of sexual violence was someone they knew. Again, the younger the child, the more likely this was, with a known perpetrator involved in the sexual violence against almost nine in ten children younger than five years.

   Many of the patients who returned home after their consultation were in danger of experiencing further abuse. One in ten adult women reported that the latest incident of sexual violence was part of a repeated or ongoing pattern. For children, this risk was heightened, with almost two in five children experiencing repeated or ongoing sexual violence.

   Family and sexual violence are clearly widespread and destructive in Papua New Guinea. This makes it all the more vital that survivors have access to free, quality, confidential treatment, in addition to services beyond medical care to keep them safe. But, at present, this is too-often not the case. Patients face multiple obstacles for obtaining essential medical and psychological care, and they face severely limited options for accessing the legal, social and protection assistance they require. They are thus made ‘double victims’ – suffering first from brutal attacks, and then from failures in service provision and in the protection system.

   Inadequate or inappropriate responses from the country’s hybrid system of formal and traditional justice, and the dysfunction of the protection system, are putting survivors’ lives and health at risk. Patients’ experiences expose a culture of impunity, and a continuing reliance on traditional forms of justice to solve serious family and sexual violence cases. The widespread tradition of ‘compensation’, whereby either money or pigs are paid to victims’ families for crimes committed, means that perpetrators often remain within their communities, exposing survivors to the threat of repeated violence.

   
   

   ….

   
   

   In Papua New Guinea, traditional village courts sit within the formal system and are legally not authorised to determine criminal matters such as rape or murder, which should always be referred to the district or national courts. However, district courts are located only in provincial capitals, and with more than 80% of the population living in rural areas, a journey to the police or court can mean several days of travel.

   The costs, insecurity and time associated with travel create disincentives to use the formal system for some, and render it impossible for others. The police also face their own logistical and budgetary barriers to enforcing the law in remote areas – due to shortages of fuel or vehicles or reluctance to travel to areas with little government presence where police are not welcome.

   However, survivors’ stories reveal that these logistical barriers are merely one factor in the complex, interconnected reasons for the continuing under-reporting of violence against women and children and the strong reliance on the village court system, including for serious domestic and sexual crimes A lack of legislative protection and support, combined with a general lack of confidence in the police and formal justice system, also contribute to the under-reporting of family and sexual violence.

   Survivors need dedicated spaces within police stations for trained officers to respond to family and sexual violence cases in an appropriate, sensitive and effective manner. However, while Family and Sexual Violence Units were created for this purpose, some provinces still do not have any (14 provinces out of 22 have established Family and Sexual Violence Units) with a total of only 17 for the whole country.

   In addition, Papua New Guinea’s entire police force is understaffed. The UN recommends a ratio of 1 to 400 police officers to the population, but in PNG it is three times lower, at 1 to 1200.  Furthermore, stories from survivors reveal that police officers outside the Family and Sexual Violence Units and Sexual Offences Squad remain under-trained or under-committed to deal appropriately with this type of violence.

   Incidents of police misconduct also fuel distrust in the formal justice system, leading to continued disengagement from reporting and pursuing criminal proceedings. In the last three months of 2015 alone, 41 officers in the capital, Port Moresby, were suspended on misconduct charges, while more than 1,600 complaints of police abuse were reported over a seven year period.

   Many survivors of family and sexual violence have told MSF staff that their dealings with police were met with apathy or dismissive attitudes, at best, and with corruption, aggression and even violent abuse, at worst. It is telling that one in ten adult women – 10% (13/129) – who sought treatment in the Port Moresby centre following sexual violence in 2014 and the first six months of 2015 reported that the perpetrator was a member of the police or military.

   Even when police do follow up a case and it makes it to court, the prosecution of perpetrators remains ad hoc, as shown by statistics from [Town 2], Morobe province, where the probability of a sexual violence case involving a female being successfully prosecuted was just 1 in 338, while one involving a child was 4 in 192

   The barriers to seeking protection through the official legal system contribute to a continuing reliance on village court culture. Papua New Guinea’s ‘wantok system’ promotes a communal culture with a strong preference for dealing with issues within the clan or community internally, rather than through government-enforced national laws. So, although domestic violence was classified as a criminal offence under the 2013 Family Protection Act, it continues to be viewed by many as a private matter to be handled within the family, or by traditional community compensation mechanisms.

   Village courts often rely on an approach that prioritises continuing wantok group unity over survivors’ needs. The widespread culture of ‘compensation’, whereby money is paid to victims’ families for crimes committed, means that perpetrators of family and sexual violence often evade imprisonment and any official recognition of their violence as a criminal act.

   Such rulings fail to protect the survivor, or others, from further violence and harm, as the perpetrator is free to return to the community where the victim lives. The compensation approach also reduces incentives to make complaints against perpetrators who come from the same family or clan as the victim – which is the reality for all survivors of intimate partner violence and almost half the survivors of sexual violence treated by MSF.

5. The United States State Department’s current report on human rights practices in Papua New Guinea states, in part:

   The law criminalizes intimate-partner violence, but it nonetheless persisted throughout the country and was generally committed with impunity. Since most communities viewed intimate-partner violence as a private matter, few survivors reported the crime or pressed charges, and prosecutions were rare. The law also gives legislative backing for interim protection orders; allows neighbours, relatives, and children to report domestic violence; and gives police the power to remove perpetrators from their homes as a protective measure. Implementation of the law remained incomplete…

   Traditional village familial networks, which sometimes served to mitigate violence, were weak and largely absent when youths moved from their villages to larger towns or the capital. According to Amnesty International, approximately two-thirds of women in the country were struck by their partners, with the number approaching 100 percent in parts of the Highlands. The NGO reported there were only three shelters for abused women in Port Moresby, all privately run, which were often at full capacity and had to refuse women interested in counseling and shelter. The situation was worse outside the capital, where small community organizations or individuals with little access to funds and counseling resources maintained the shelters.
   Violence committed against women by other women frequently stemmed from domestic disputes. In areas where polygyny was customary, authorities charged an increasing number of women with murdering another of their husband’s wives.

   Independent observers indicated that approximately 90 per cent of women in prison were convicted for attacking or killing their husbands or another woman.

   Other Harmful Traditional Practices: Customary bride price payments continued to increase. This contributed to the perception by many communities that husbands owned their wives and could treat them as chattel…

   Although the law provides extensive rights for women dealing with family, marriage, and property disputes, gender discrimination existed at all levels. Women continued to face severe inequalities in all aspects of social, cultural, economic, and political life. Some women held senior positions in business, the professions, and the civil service, but traditional and deep-rooted discrimination against women persisted. Women, including in urban areas, were often considered second-class citizens.

   Village courts tended to impose jail terms on women found guilty of adultery while penalizing men lightly or not at all. The law requires district courts to endorse orders for imprisonment before imposing sentences, and National Court justices frequently annulled such village court sentences. Polygyny and the custom in many tribal cultures of paying a “bride price” tended to reinforce a view of women as property. In addition to being purchased as brides, women sometimes were given as compensation to settle disputes between clans, although the courts have ruled that such settlements denied women their constitutional rights.[2]

   [2] "Papua New Guinea - Country Report on Human Rights Practices 2015", US Department of State, 13 April 2016.

6. Other reporting[3] supports a conclusion that rates of domestic violence are very high in Papua New Guinea, with as many as 70 per cent of women experiencing family or sexual violence at least once in their lifetime.  While there have been some recent measures to improve the responses of the police and the judicial system to these problems, effective state protection is largely absent.  There is evidence of unwillingness on the part of the police, particularly in rural areas but also to some extent in Port Moresby and other major population centres, to regard domestic violence against women as a suitable matter for official action and a tendency to dismiss complaints or abet the offender.  The judicial system, in particular at village level, has demonstrated a general inability or unwillingness to penalize the few offenders who are charged and brought before the courts.

   [3] See, for example, ‘Papua New Guinea 2015 Human Rights Report’, United States Department of State, April 2016; ‘Domestic Cruelty: the Violent Scourge of Papua New Guinea’, ABC March 2016; ‘Women seek islands of refuge in Papua New Guinea’s sea of violence,’ Guardian (Australian Edition) March 2016; ‘Bashed up: family violence in Papua New Guinea,’ Human Rights Watch, November 2015.

7. Although there were a number of inconsistencies and gaps in the Applicant’s evidence at the hearing about her experience of domestic violence, she was able to offer reasonable explanations when these were raised with her for comment.  She appeared to be a satisfactory witness, overall, who did not seek to exaggerate or develop her core account of having suffered harm from [Mr A], an account she has consistently advanced from the time of her protection visa application.  On the basis of the information she has presented to the Tribunal, including documents from [Agency 1] and the police and an affidavit before the [Court 1], I accept that she began a relationship with him in 2009 when she was living with her mother in [Town 2].  I accept that he became abusive towards her as the relationship developed and that he was physically violent, including on one occasion in September 2010 when she suffered a broken nose and other injuries.  I accept that she complained to the police about his treatment of her, as a result of which she obtained a protection order and he was detained, later escaping from custody.  I accept as well that, for at least some time after this he continued to visit her house and threaten her and her mother.

8. As put to the Applicant at the hearing I have some concerns about the overall likelihood that [Mr A] would continue to pose a threat to her if she were to return to Papua New Guinea now, over five years since she left the country.  I note that their relationship lasted for less than two years, that they were not engaged or married either in a legal sense or according to traditional cultural practices involving payment of a bride price, that they did not live together, that they did not have children and that there was no sharing of property or finances.  I also note that, from her description of him he is not a wealthy or influential person who might be able to use his power to harm her even if he is, as she claims, contemptuous of authority and unafraid to of the police.  I also note that the delay of three years between her arrival in Australia and her application for protection inevitably casts doubt over the truth of her claim to fear further harm from him, although I have taken into account her explanation that she felt safe in Australia as she had a student visa which she was able to renew.  Against these considerations, however, I also note the evidence of her mother’s affidavit indicating that [Mr A] has continued to make threats against her and the Applicant following the Applicant’s departure for Australia, together with the witness evidence of her de facto partner in Australia that he had personally witnessed abusive and threatening telephone calls [Mr A] made to her.

9. In the light of all the information before the Tribunal I am prepared to accept there is a small but nevertheless real chance that the Applicant would suffer serious harm at the hands of her ex-partner if she were to return to her home area of [Town 2].  I consider that his reason for wishing to harm her is a purely personal one, arising from jealousy and anger at her having left him, and I am not satisfied that he could reasonably be seen as being motivated by any consideration of her membership of a particular social group.  Nevertheless, I have considered whether a nexus with a Convention reason may be found in the failure of the Papua New Guinea authorities to protect her from him. 

10. I accept that Papua New Guinea is a party to international human rights instruments including the Convention on the Elimination of All Forms of Discrimination Against Women and has provisions in its Constitution and domestic law guaranteeing equality and providing sanctions against domestic violence. I also accept that there have been recent improvements in the way in which the police and the judicial system approach questions of violence toward women. It is true as well that in the Applicant’s particular case there is evidence that the authorities, at senior level, have taken an interest in her case and have tried to assist her. I also note, however, that there appears to have been a general lack of follow-up after this initial support so that [Mr A] has, apparently, been able to continue to live his life in [Town 2] without any further action by the police to follow up on the complaints made against him in 2010. I consider it is likely that if the Applicant were to return to live there the police would not take any effective action to prevent him harming her or subsequently to bring him to justice. The information suggests that this failure to act would be due in part to factors such as under-resourcing and lack of training but it also indicates that the police at times adopt the attitude that abuse, including violent abuse, is a domestic matter in which they do not have a role to play and that women, particularly those who have left abusive relationships, are to some degree less deserving of protection. On this basis I am prepared to accept that the Applicant would be denied protection from the harm she fears because of her membership of the particular social group ‘women in Papua New Guinea who have left an abusive domestic relationship.’

1. I have also considered whether the Applicant might be able to avoid the persecutory harm she fears by relocating to some other part of Papua New Guinea.  I have some doubt that the person she fears, [Mr A], would be able to track her down and harm her if she were to move to some other population centre such as Port Moresby and I note that she might well be assisted in relocating by the fact that she has no dependents and enjoys advantages of education and employment experience.  I also accept, however, that she does not have family support mechanisms outside [Town 2] and although she has a brother who is studying in Port Moresby, he is unlikely to be in a position to support her there.  I note that the country information indicates that single women outside the protection of their family or relatives are at risk of violence including sexual violence.  Taking these considerations together I am not satisfied that, in her particular circumstances, the Applicant could escape serious harm by relocating away from her home area of [Town 2].

   CONCLUSION

2. In the light of all the information before the Tribunal I accept that the Applicant has a well-founded fear of persecution, for the Convention reason of her membership of a particular social group, should she return to Papua New Guinea now or in the reasonably foreseeable future.  I find that effective protection measures are not available to her and that, in her circumstances, the real chance of persecution applies to all areas of Papua New Guinea.

3. Given these findings I accept that the Applicant satisfies s.36(2)(a) of the Act.

   DECISION

4. The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s.36(2)(a) of the Migration Act.

   Andrew Mullin
   Member