1502368 (Refugee)

[2017] AATA 1676

1502368 (Refugee) [2017] AATA 1676 (22 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502368

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Nicole Burns

DATE:22 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 September 2017 at 11:46am

CATCHWORDS

Refugee – Protection visa – Papua New Guinea – Federal Circuit Court dismissal – Complementary protection grounds – Social group – Women – Domestic violence victim

LEGISLATION

Migration Act 1958, ss 5, 36, 48A, 65, 499

Migration Amendment (Complementary Protection) Act  2011

CASES

AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235

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 first applied for a protection visa [in] February 2011.  That application was refused [in] April 2011 and affirmed by the former Refugee Review Tribunal (RRT) (differently constituted) on 15 July 2011.  The applicant appealed that decision and the Federal Circuit Court dismissed the application [in] December 2011.  The applicant sought Ministerial Intervention; however the Minister declined to intervene [in] February 2012. 

3. From 24 March 2012 a new alternate criteria for the grant of protection visas was introduced by the Migration Amendment (Complementary Protection) Act 2011, so that a person may meet the criteria for a protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that she or he will suffer significant harm.

4. [In] August 2013 the applicant applied for a further protection visa (the current application under review), pursuant to the Federal Court of Australia decision in SZGIZ v MIAC (2013) 212 FCR 235. The delegate refused to grant the visa [in] February 2015.

5. The Full Federal Court in SZGIZ held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 (AMA15) upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to the complementary protection criterion contained in s.36(2)(aa).

6. The applicant appeared before the Tribunal on 12 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the New Guinea Pidgin and English languages.

7. The applicant was represented in relation to the review by her registered migration agent. She attended the Tribunal hearing.

   Complementary protection criterion

8. An applicant may 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’).

9. The Tribunal notes that ‘significant harm’ for purposes of complementary protection is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

10. Relevant to this case, ‘cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted.

11. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

12. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

13. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

    Section 499 Ministerial Direction

14. 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 –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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant is [an age] year old woman from [village], near [Town 1] in the Western Highlands Province, PNG.  She claims to fear significant harm at the hands of her former partner, [Mr A], on return to PNG. 

16. The applicant set out her claims to the Department in a statutory declaration dated [in] May 2014, another statutory declaration dated [in] December 2014 and a final statutory declaration dated [date] December 2014.  The representative provided a number of written submissions[1] to the Department in support of the applicant’s case, submitting that the applicant has a well-founded fear of persecution in PNG on the basis of her membership of the following particular social groups:

    ·Woman in PNG;

    ·A married woman in PNG;

    ·A woman in PNG subject to domestic violence and sexual abuse; and

    ·A woman without a male protector in PNG. 

    [1] Dated [December] 2014, [December] 2014 and [January] 2015.

17. On review the applicant provided a further statutory declaration to the Tribunal dated [November] 2015 in which she expands upon her claims and addresses specific concerns raised by the delegate.

18. At the Tribunal hearing the applicant gave evidence about her background, the history of her relationship with [Mr A], and fears upon returning to PNG now, summarised as follows.

19. The applicant told the Tribunal she met [Mr A] at their local market, they became friends, and they moved in together in around 2006.  She moved from her parents’ house in [village] to [Mr A’s] house in [another] village, around three hours walk away.  They lived together until the applicant left to go to Port Moresby about five days before leaving PNG [in] January 2010.  During this period the applicant worked making and selling [goods], selling [food], as well as [other] work.  [Mr A] also did [other] work and managed a [farm] where they lived.  Although they lived together the applicant said [Mr A] never paid a ‘bride price’ to her family and they did not have a customary marriage ceremony: this was a point of contention for her parents and why her father refuses to speak to her to this day.

20. The applicant said she visited Australia for three months from March until June 2009: staying two months in [a city] and a month in [a town], for a holiday.  [Mr A] supported her trip, including financially.  He did not join her because they did not have money for both of them to visit Australia at that time.  On return to PNG in June 2009 the applicant said the problems began in earnest in her relationship with [Mr A].  Specifically [Mr A] started to use language he had not used previously, and would drink and ‘bash’ her up when he came home.  Her neighbours told her they thought he was involved in drugs.  One time during this period he got angry at her when she was cooking sweet potatoes and kicked the pot of boiling water which landed on her foot.  Another time, in October or November 2009 the applicant said he woke her up around 3am after he came home drunk, started to strangle her, and only stopped after she grabbed his ‘private parts’.  After this incident she decided she needed to leave because she was afraid [Mr A] would kill her.

21. Sometime in September that year (2009) the applicant said she reported [Mr A] to the police in [Town 1]: they told her to go and sort out her problems with her ‘husband’.

22. The applicant said during this period she went to her parents on three occasions to get away from [Mr A]: twice in September and once in October (2009), including after he kicked boiling water on her and another time after he had hit her and forced her out of their home.  Her parents were not sympathetic – blaming her for ‘marrying’ him.  They told her to put up with him.  Also, on two of the three times she visited her parents [Mr A] came to their house, verbally abused them, and took the applicant home with him again: they were afraid of him as a result.

23. The applicant said she lived too far away from a hospital or health post and therefore did not seek medical treatment after the incidents. Instead she used taro leaves and herbs on her injuries.

24. The applicant said she returned to live with [Mr A] in PNG after her visit to Australia in June 2009 because at that time their relationship was ‘normal’; that is they had had disagreements before but she had not been abused or hit by him.  This was why she did not apply for protection whilst in Australia, as well as the fact that she did not know that was an option at the time.

25. The applicant said she has had no contact with [Mr A] since she left him in January 2010.  When asked if he has contacted any of her friends or family in PNG in a bid to find her and/or threaten her via them, the applicant replied ‘no’ noting that her family are scared of him so they have not bothered to try and contact him.  The applicant said her mother has told her recently that she has seen [Mr A] at the market in [Town 1] who looks mentally unwell: however they do not speak to each other.

26. The Tribunal finds the applicant has made generally consistent claims about her past experiences in PNG and why she fears returning there.  There was an inconsistency between her claim in her May 2014 statutory declaration provided to the Department that she had had no contact with anyone in PNG since she left in January 2010 and her oral evidence before the Tribunal that she has been in contact with her mother in PNG, including in around 2011 when she told her mother she had gone to Australia and why.  At hearing the applicant acknowledged that she may have made a mistake, noting that it was some time ago.  Given her claims were otherwise consistent the Tribunal accepts her explanation.

27. As discussed at hearing, the Tribunal had a concern with the fact that the applicant failed to raise any domestic violence claims at all in her first protection visa application. The applicant explained that because someone else (an agent or lawyer introduced through [a] man she met at a backpackers’ in Australia) filled in her application form (which she signed) she was not aware of its contents: further he did not ask her why she feared returning to PNG at the time.  She told the Tribunal she first realised the first application contained information that was not her story when she went to court in [Australia]: however she had no idea who to go to try and help sort it out and her ‘lawyer’ did not answer her calls at the time.   Although not without doubt, the Tribunal is willing to accept her explanation in this respect, and does not draw an adverse inference on the fact that her first protection visa application was fundamentally different to her second protection visa application, and notes in this regard that the claims contained in the first protection visa application have been abandoned by the applicant. 

28. The Tribunal has some concerns as to the seriousness of [Mr A’s] violence and risk to the applicant because although her second [temporary] visa application to Australia was granted [in] December 2009, she did not leave PNG until [January] 2010[2].  At hearing the applicant explained the delay in leaving PNG after her visa was granted was because she needed to save more money to look after herself.  However given her claims to have been making only a small amount of money at the time selling, among other things, [goods], the Tribunal is not persuaded by this explanation.  For this reason the Tribunal is of the view that the applicant exaggerated her sense of imminent danger to some extent. 

    [2] As set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review.

29. Nonetheless, as the applicant’s evidence to the Department and Tribunal overall has been reasonably consistent it accepts that she had a relationship with [Mr A] in PNG and that they lived together from 2006 to January 2010.  It accepts that she suffered violence and abuse - physical and verbal – perpetrated by [Mr A] from June 2009 until around November 2009, which precipitated her decision to leave him (and the country).  It accepts her claims that he may have been taking drugs at the time.  The Tribunal also accepts the applicant reported [Mr A] to the police in [Town 1] one day and they told her it was a family problem and did not take any action.

30. The applicant gave evidence that she left [Mr A] in January 2010 and has neither spoken to nor seen him since that time.  She recalls the last time he physically harmed her was in November 2009. 

31. The Tribunal is not satisfied that the applicant has continued to suffer significant harm from [Mr A] since she left him in January 2010 or that she would suffer significant harm from him if she returned to PNG.  On the applicant’s own account, she is unaware of [Mr A] making any attempts to contact her after she left him either directly or through her family or friends in PNG.  The applicant told the Tribunal recently her mother has seen him at the market in [Town 1] area, and he looks ‘crazy’ but they never talk.  The fact that he has not approached the applicant’s mother in such settings indicates to the Tribunal that he is not interested in the applicant’s whereabouts, for example.  The Tribunal has considered the submission that the applicant cannot be expected to put herself in the mind of the perpetrator to be certain of his intentions; that there is no possibility of knowing that [Mr A] was no longer interested in the applicant, noting that her parents are afraid of him and the limited information known is that the applicant’s mother has an impression of him sitting around at the market like he has lost his mind; and that from the limited information relayed about [Mr A] from her mother the possibility that [Mr A] is still interested in pursuing the applicant (and harming her for leaving him) cannot be discounted.   It is also submitted that each ‘stage’ of the predictability of pattern in domestic violence can last for as little as minutes or as long as years.  The Tribunal accepts the applicant’s parents may be scared of [Mr A] given he came to their house and verbally abused them in the past.  It also accepts there is usually a cycle of domestic violence with periods of no violence.  However the Tribunal is of the view that if [Mr A] maintained an ongoing adverse interest in the applicant he would have made enquiries with her parents and possibly others, who continue to live in the same area and his lack of contact indicates a lack of interest. 

32. The Tribunal has also considered the submission that because the applicant rarely spoke to her mother about [Mr A], the Tribunal should not conclude that [Mr A] has not been enquiring about the applicant with her parents or others.  The Tribunal is willing to accept that the applicant and her mother rarely talk about [Mr A], given cultural and other barriers to do so.  However it is of the view that if he had enquired about the applicant with her parents or others and the applicant’s mother knew of such, she would have told the applicant, to at the very least warn her not to return. 

33. For these reasons, the Tribunal is not satisfied that the applicant faces a real risk of significant harm from [Mr A] for any reason on return to [Town 1] and surrounds if removed from Australia to PNG.   

34. It is submitted[3] that although [Mr A] did not pay the bride price, they are considered married because they lived together, and country information indicates the applicant is still at risk from [Mr A] regardless of whether a bride price has been paid because PNG culture is highly patriarchal, women are second class citizens and have no effective state protection.  Further, it is submitted that it is unlikely the applicant could separate from her ‘husband’ without violent consequences, noting that she tried to seek help from her parents and the police in 2009 to no avail.  Reference is made to country information about the risks associated with attempting to leave an abusive relationship.  The Tribunal accepts that the applicant and [Mr A] lived together for around four years in the past however given the last time he physically harmed her was in around November 2009 and they have had no contact since January 2010, directly or indirectly, the Tribunal is not satisfied that the applicant faces a real risk of significant harm from [Mr A] if returned to PNG, even if considered husband and wife under custom as submitted. 

    [3] In the representative’s written submission to the Department dated [December] 2014.

35. The Tribunal has considered whether the applicant faces a real risk of significant harm more generally on return to PNG as a woman and or single or separated woman.  The representative in her written submission to the Department[4] and to the Tribunal[5] refers to country information from a variety of sources about the prevalence of violence against women in PNG and the lack of state intervention to protect women and prosecute perpetrators, including from Human Rights Watch and Medecins Sans Frontieres.  The Tribunal accepts the situation for many women in PNG is poor and in particular for women in the Highlands where the applicant originates from, that discrimination exists, that domestic or family violence is particularly endemic and state protection inadequate.  However the applicant separated from her PNG partner in 2010 and for reasons above the Tribunal has found she does not face a real risk of significant harm at his hands on return.  She has not claimed to have experienced problems from other individuals whilst she lived in PNG in the past as a woman.  The Tribunal accepts the applicant will be returning to PNG as a separated/single woman and protection from males in her family – that is her father and brothers – may be limited given they are angry at her.  The Tribunal accepts that single women and/or separated women in PNG can face discrimination and hardship. However, the applicant does have the support of her mother on return, has a reasonable amount of education (obtaining qualifications in Australia, as set out below) and some work experience in Australia indicating she is resourceful and financially independent.  Given these considerations, the Tribunal finds remote the chance the applicant would face significant harm on return to PNG as a single mother, single woman and/or separated woman without male protection, or more broadly as a woman in PNG.  Her fears of persecution on these bases are not well founded.

    [4] Dated  [December] 2014

    [5] Dated 11 September 2017

1. The Tribunal has accepted that the applicant is a woman who has suffered domestic violence in PNG and considered whether she faces a risk of significant harm from the community due to her membership of this particular group.  Whilst it accepts there may be a level of stigma and social isolation as a result, there is no information before the Tribunal to indicate that women who have suffered domestic violence in the past are targeted for harm in PNG by anyone and the Tribunal does not accept that she faces a real risk of significant harm on return to PNG as a women who has suffered domestic violence from the community as a necessary and foreseeable consequence of being removed from Australia to PNG.

2. The Tribunal notes that in her statutory declaration[6] provided to the Department the applicant stated that growing up in her village was ‘okay’ but [Town 1] was a dangerous place because of drug dealing and stealing and ‘women were held up with knives and their money was stolen’. The Tribunal accepts that there is a high crime rate in PNG, including in areas such as [Town 1].  However the applicant has not claimed to have been a victim of crime herself and the Tribunal considers the chance of the applicant being targeted or caught up in generalised criminal attacks to be too remote to amount to a real risk of significant harm on this basis.

   [6] Dated  [May] 2014

3. The Tribunal has considered the submission that the applicant will be unable to subsist if returned to PNG.   It is submitted that due to her limited [education], limited employment history, and no support networks she will face economic hardship and isolation. In terms of family support, at the hearing the applicant said her father has not spoken to her for many years - unhappy because she lived with [Mr A] yet no bride price was paid – however she speaks to her mother occasionally.  She said her parents [an siblings] currently live in the [Town 1] area and survive through [various] work.  In one of her statutory declarations provided to the Department the applicant stated that she does not speak to her siblings anymore because they hate her.

4. The Tribunal accepts the applicant has limited schooling in PNG, having left school in [a certain grade] however notes her evidence to the Tribunal that she completed a [course] in child care in Australia (among other qualifications) and has worked in Australia in [various] work, indicating a certain level of education and work experience.  The Tribunal accepts she is estranged from her father, but not her mother who would be able to provide some assistance on her return even if basic such as shared accommodation, and the applicant would be able to [work] as she did before in PNG, or obtain other employment given her education and work experience in Australia.  The Tribunal notes the applicant was able to pay for airfares to Australia in 2009 (with [Mr A’s] help) and a return airfare in 2010 with money she had saved from making and selling [goods] and selling [other goods] and food for example.  Given these considerations, whilst the applicant’s income may be limited on return to PNG, the Tribunal does not accept the submission that she would not be able to subsist on return. 

5. For reasons above, taking into account the applicant’s claims singularly and cumulatively, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of her being removed from Australia to PNG.

   Other matters:-

6. The Tribunal notes in her written submission to the Department [in] December 2014 the representative cites a number of earlier RRT decisions in which the Tribunal found the applicants were owed protection by Australia on domestic violence grounds.  The Tribunal notes it is not bound by other Tribunal decisions and these decisions do not alter the findings above in respect to this applicant. 

   CONCLUSION

7. 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 s.36(2)(aa).

8. 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

9. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Nicole Burns
   Member