1503733 (Refugee)

[2017] AATA 1799

1503733 (Refugee) [2017] AATA 1799 (13 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503733

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Nicole Burns

DATE:13 September 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2017 at 12:57pm

CATCHWORDS

Refugee – Protection visa – Papua New Guinea – Social group – Women – Victim of domestic violence – Separated from husband

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Applicant S v MIMA (2004) 217 CLR 387
MIAC v SZQRB [2013] FCAFC 33

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 (PNG), applied for the visa [in] July 2013 and the delegate refused to grant the visa [in] March 2015.

3. The applicant appeared before the Tribunal on 28 February 2017 to give evidence and present arguments.

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

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Mental health considerations

10. The representative has submitted that the applicant, deeply affected by the decision to leave her children in PNG and the deteriorating health of her father there (who died in October 2016), has experienced sadness, guilt and felt ‘suicidal on multiple occasions in the last few years’.

11. At the Tribunal hearing the applicant said she was stressed before the hearing and contemplated suicide after the Department’s negative decision on her case.  She suffers from black outs sometimes.  She sees a counsellor once a month.  She said she took medication for depression but stopped last year. 

12. Letters from two doctors have been provided to the Tribunal about the applicant accompanying a request that her case was prioritised.  That is a letter from [a doctor] [at a] Medical Centre dated [May] 2016 who states that he has met [the] [applicant]; briefly describes her background; and indicates that as she has no family in Australia and a very sick father in PNG and she feels very alone.  The other letter provided is from [a doctor of an agency] dated [June] 2016 who states that she has seen the applicant five times since September 2013; she only sees her when she is under extreme stress, noting she is strong and resilient; the applicant describes anxiety and insomnia; occasionally stress causes her to blank out; she has made two suicide attempts; her anxiety and depression are caused by her separation from her children and more recently by her concerns for her father; and because she is separated from her family and friends she feels extremely lonely. 

13. The Tribunal accepts the applicant has experienced sadness, anxiety and stress at times and may be lonely in Australia away from her family members, in particular her children.  It accepts she may have received support in Australia through counselling and medications in the past to help manage these issues, including her suicidal thoughts on occasion.  The Tribunal notes that no reports from mental health professionals have been provided to the Tribunal that indicate she has been diagnosed with or suffers from a specific mental illness.  The Tribunal also notes the applicant’s evidence that she works full time [and] the comments from [the second doctor] about her strength and resilience. 

14. Given these considerations, the Tribunal is satisfied that her mental health issues are not so severe that they would result in a real chance of serious harm or a real risk of significant harm to her on return to PNG.  

15. Further, the Tribunal is satisfied on the evidence before it that the applicant was able to meaningfully participate in the Tribunal hearing because she was able to understand the Tribunal’s questions and respond clearly.    

    Refugee assessment

    Nationality

16. Based on a copy of the applicant’s biodata page of her PNG passport on the Departmental file (and provided to the Tribunal), and the fact the delegate had no issues as to the applicant’s claimed nationality, the Tribunal finds the applicant is a national of PNG and assesses her claims for protection accordingly.

    Background and specific protection claims

17. The applicant, a [age] year old woman from [District 1], Enga Province, Papua New Guinea (PNG), claims to fear serious harm at the hands of her husband on return to PNG.

18. It is submitted[1] that the applicant faces a real chance of serious harm on return to PNG from her husband and she will not receive adequate protection from the authorities there on account of her membership of the following particular social groups:

    a.Women in PNG; and/or

    b.Women who have suffered domestic violence in PNG; and/or

    c.Women without male protection in PNG. 

    [1] In a written submission from the representative to the Tribunal dated 22 February 2017.

19. The applicant set out her initial protection claims in a statutory declaration that accompanied her visa application dated [June] 2013. In it she stated that she left PNG in April 2013 to escape her husband who had been violent towards her on many occasions in the past.  She detailed the history of their relationship and his violence directed toward her.  She fears he will kill her on return, because she ran away from him and that neither her family nor the police can protect her. 

20. In support of her claims the applicant provided to the Department medical reports and receipts from her time at [name] Hospital, Port Moresby in periods in February and March 2013 due to complications from a [medical condition], and a copy of a letter from the applicant’s (late) father, [the] Chairman [District 1] village court, [February] 2013 (and a copy of his identification card).  

21. The applicant submitted a further statutory declaration to the Department dated [March] 2015 in response to a letter from the delegate asking her to comment on potentially adverse information, including different information she had allegedly provided on her earlier [temporary] visa applications to Australia about, among other things, her family composition and place of residence.  She also submitted a letter from a friend in PNG, [Ms A] dated [February] 2015.  In her statutory declaration and the attached submission from her representative it was explained that the applicant used agents to lodge her earlier [temporary] visa applications and was not aware of their full content.  In her letter [Ms A] confirmed that she had introduced the applicant to an agent who helped her lodge the second ([temporary]) visa application.  The Tribunal accepts the applicant used an agent to lodge her earlier [temporary] visa applications to Australia, accepts her current evidence to the Tribunal about her family composition and other relevant matters (discussed below where relevant) and does not draw an adverse inference from inconsistent or incomplete information provided in these earlier applications.

22. On review the applicant provided to the Tribunal a statutory declaration dated [September] 2015 and supporting documents, including copies of her biological children’s birth certificates[2];  a letter from [a]  Medical officer, [Hospital 1], dated [June] 2006; a letter from [the] Former Ward Councillor – [District 1] Local Level Government, [Ward] Council, Enga Province, dated [April] 2015; and a photograph of three men, purportedly including the applicant’s (late) father in PNG.

    [2] Which indicate that her son[was] born at [a] Hospital, [District 1], Enga Province on [date] and her daughter [at] the same place on [date]. 

23. Also submitted was a letter from [Mr B], [District 1], Royal Papua New Guinea Constabulary (RPNGC) dated [March] 2015 (and a copy of his RPNGC identification card).  In it [Mr B] stated that [in] September 2011, the applicant:

    ...took it to the attention of police here at [District 1] for future reference.  Thus, the wife was beaten by the husband badly where she reported with swollen face, bleeding nose and swollen black eyes.

    They had two (2) kids; the wife has been silent from such courinud [sic] beatings by husband in their Marriage life up until now where she decided to report to police incase [sic] of other serious attacks in the future causing serious grievous bodily injury(s).

    Though, we were not operational at the police station, she reported when police were patrolling and only attending to argue cases in the community (s). 

    As she was very concern for her life and reported for reference in future I personally observed the injuries and refer the victim to hospital for treatment.

24. On 25 October 2016 the applicant’s representative advised the Tribunal by email that the applicant’s father had died in PNG (and provided photographs of her deceased father and his burial).  She submitted that his death means the applicant would not have recourse to any protection or support from him if she returns to PNG.  The Tribunal accepts the applicant’s father died in October 2016.

25. In her oral evidence to the Tribunal the applicant described the history of her relationship with her husband and his violence directed towards her over a number of years which precipitated her decision to leave PNG in April 2013.   She said they married in a customary ceremony in 2002 and her ‘bride price’ – paid to her family and community by her husband’s family members – was [amount][3] kina and [pigs].  Her husband became abusive to her following the birth of their son in 2003, for example by kicking her out of bed when she was asleep with her son to make her cook him food, usually when he was drunk.  He was also very suspicious and jealous, often questioning the applicant about her whereabouts and who she had spoken to when she returned home late from the market, for example.  The first time he was physically violent toward her was in 2006 when he tried to gouge out her eye.  She went to the [Hospital] in her district for treatment, just for the day (a letter from the hospital has been submitted as cited earlier).  She told her family but they did not say or do anything. 

    [3] Equivalent to AUD[amount] as at 1 September 2017,

26. The applicant said the next time her husband was physically violent towards her was in 2010 when he hit her on the head with a piece of timber (she has a scar on her head as a result).  She did not go to hospital, instead treating the wound herself with aloe vera.  Nor did she go to hospital in 2011 when he punched her in the face and broke her nose.

27. The applicant said she did not go to the police because they say it is a family problem and to solve it at home. However once, in 2011, after her husband hit her she saw a police officer ([Mr B]) patrolling the area and told him about her husband.  He said there was nothing they could do because the police station was closed and if her husband tried to do anything again to come back to him. 

28. The applicant said she visited Australia for three months from [October] 2012 to [January] 2013, helping care for her [friend’s] children (who live in Port Moresby) in [Australia].  The applicant saved for a couple of years to pay for the visa and her passport for the trip, and [her friend] paid for her airfare and other costs.  Her husband was happy for her to go on that trip.  She spoke to her husband over the phone around once a week whilst in Australia.  On return to PNG the applicant said she spent a night in Port Moresby then returned to her home village in Enga, [in] January 2013.  She said her husband was verbally abusive to her during this time, accusing her of going around with some men in Australia.  She thought he was going to become violent so decided she needed to get away from him. 

29. In the beginning of February [2013] the applicant said she flew from Enga to Port Moresby, telling no one beforehand except her father who provided her with a bank statement required to obtain her visa (to Australia).  As soon as she arrived in Port Moresby she applied for a [temporary] visa to Australia.  She stayed with a friend – [Ms A] - in Port Moresby.  The applicant’s visa was granted and she bought a ticket to Australia in February however she was unable to leave the country until [April] 2013 because [she had a medical condition] and she was hospitalised for around a month in total, undertaking two surgeries due to complications from her [medical condition] and a related infection.  The Tribunal accepts her evidence in this regard, noting the hospital reports provided to the Department.  Before her operation the applicant told the hospital staff to call her husband because he had to sign the permission documents.  When her husband first arrived at the hospital and saw that the applicant was very unwell he did not say anything about the fact that she had left him.  However later, when she was discharged and staying at [Ms A]’s home in Port Moresby, he accused her of going around with men and being in hospital for an abortion.  The applicant said one time during this period he raped her at [Ms A]’s house in Port Moresby. 

30. The applicant left Port Moresby [in] April 2013 without her husband’s knowledge: he was out with friends when she left [Ms A]’s house where she was staying.  She has had no contact with him since and he has not contacted her.  He threatened her father and [her] sisters in the village when he found out via [Ms A] - after he threatened her over a number of days – that she had gone to Australia.  The applicant said her husband told her father and sisters that if she returned to PNG he would kill her. 

31. The applicant left her son, now aged [age], and daughter, now aged [age], with her husband when she left PNG, along with her sister’s two young children whom she had been looking after from around two years before she left (after their parents’ marriage ended).  Last year they returned to live with their mother, the applicant’s sister.  The applicant’s son continues to live with his father and the applicant has had no contact with her son since she left PNG in early 2013.  After the applicant’s father’s funeral in October 2016 her daughter has stayed in her family’s village and lives with the applicant’s [sister]. 

32. At hearing the applicant was asked when her husband last threatened her family members in PNG, in respect of the applicant.  She said ‘sometimes’ when he sees them and noted that one time he told her sister [that] she is lucky the applicant is in Australia. She said that her ex-husband attended her father’s funeral but there were no issues. 

33. The applicant said she has not considered divorcing her husband, because she fears he would kill her.  As well, when her husband paid her bride price it was distributed among many community members, some of whom have now deceased, so they would not be able to pay it back.

34. The applicant said that according to her sister, her husband remarried in 2013 and has two sons with his new wife.  Recently he has been seen going around with another woman. 

35. At hearing when asked why she thinks her husband would still want to harm her, the applicant said because she escaped him; her family have not paid back the bride price; on marriage her husband and his family take her as their property; and she left him behind with their children without letting him know so the hatred is still in him.

36. The applicant said when she left Port Moresby she flew to [City 1 in Australia], not [another city] because there are many Papua New Guineans there and she was afraid they might talk and the news of her arrival would reach her husband.  She knew no one in [City 1], and although she had some money (AUD400) she was unsure how to book a hotel, so she slept on the streets for a few nights.  She then met a PNG woman [at] [a venue] who took her home for a few nights before introducing her to accommodation and other services through [a welfare agency]. 

37. The applicant said her family and neighbours (who heard screams at times) knew about her husband’s violence towards her in PNG in the past, however they did not do anything and were sometimes scared of him.

38. At hearing the representative submitted, among other things, that culturally women are expected to endure violence in PNG, they are considered a possession in marriage, and the male in the relationship decides about what happens, not the family or community.  This explains why the applicant’s family did nothing when told about the violence perpetrated by [her husband] against her in 2006.

39. The Tribunal accepts the applicant married her husband in PNG according to custom in 2002 and accepts her evidence about the bride price that he paid to her family and community at the time.  It accepts that she left him (and her children) in February 2013 in Enga Province and that the last time she saw her husband was when she was in Port Moresby sometime in April 2013 before coming to Australia. It accepts that he has married again and has two sons with his second wife.  In her written submission to the Tribunal the representative said the applicant has instructed her husband is about to marry his third wife, which the Tribunal accepts. 

1. The applicant has claimed to have experienced verbal and emotional abuse at the hands of her husband from around 2003 and physical, sexual, and emotional abuse from around 2006 until shortly before she left PNG to go to Australia in April 2013.  She has provided letters from police, health professionals, a former ward councillor and a friend to support her contentions in this regard.  The Tribunal accepts the applicant may have been subject to violence in a number of forms in the past by her husband, having regard to the applicant’s oral evidence and letters of support provided as well as country information that indicates widespread abuse of women by their husbands in PNG[4].  However, for reasons that follow the Tribunal is of the view that she may have exaggerated her claims in some respects.

   a)There are inconsistencies between the applicant’s oral evidence to the Tribunal and what is contained in the letter from the Medical officer, [Hospital 1], about the length of the applicant’s stay in hospital in 2006 after her husband allegedly tried to gouge out her right eye.  That is she told the Tribunal she was there for a day however in the letter it is stated that she was assaulted by her husband [in] May 2006 and was admitted to the hospital for two weeks, treated for blunt trauma to her eye.

   b)The applicant came to Australia from [October] 2012 to [January] 2013, after she claims to have been seriously mistreated by her husband over a number of years, yet failed to apply for protection and returned to her husband in Enga, PNG in early 2013. The representative submitted this was due to the fact that the applicant had limited education and exposure to foreign laws and rights of women overseas and her husband was controlling. At hearing she submitted further that often it is difficult for people to recognise the situation they are in until they are out of it or that there is another way, in particular in a situation of entrenched violence. In a statutory declaration to the Department the applicant claims she never stated she came to Australia to get away from her husband; she came to Australia for a holiday; she had problems with her husband beforehand and was scared, but it was his behaviour on return that made her scared for her life; and before that she did not know she could apply for protection.  At hearing she reiterated that she did not know about protection visas and heard about this option for the first time after she arrived in [City 1]. However this is contradicted by the statement in the letter from her friend, [Ms A], whom she stayed with in Port Moresby prior to departing PNG the second time, that the applicant told her she wanted to take refuge in Australia, but did not know how to go about lodging a visa application and was therefore advised to call a friend [who] had connections with the Australian immigration in Port Moresby. 

   c)The applicant’s husband supported the applicant’s visit to Australia for three months in 2012 – 2013, despite her claims that he was controlling, possessive and jealous, and would get angry even if she came home late from market when they lived together in PNG.  The representative submitted at hearing that in relationships people may agree to things in theory however the reality was different when the applicant was away for three months.  As well, she submitted that the fact he allowed her to travel to Australia that time does not negate the fact that the applicant has suffered violence in the past and ongoing risk due to changed circumstances.  Whilst that may be the case to a certain extent, the internal inconsistency in the applicant’s claims that her husband on the one hand was extremely controlling and yet on the other allowed her to travel to Australia for three months without him casts doubts on her claims about the extent of his possessiveness and controlling behaviour.

   d)The applicant left her children in PNG with her husband despite her claims that he was violent and she was worried about their safety.  At hearing the applicant said sometimes he slapped them, noting that it is different in PNG where women and children are not protected by the law.  She said she left them behind for a number of reasons, including because she was thinking about her life at the time and wanted to escape and because her father supported her.  She said it was a hard decision which she regrets.  She also questioned how she could have brought them to another country, noting she was on the streets when she first came to Australia.  In her submission to the Tribunal the representative argues that according to customary law in PNG, which is still important in places like Enga, the father dictates where the children live if the marriage breaks down and the applicant would not have been able to obtain custody of them without his permission.  The Tribunal notes these explanations (as to why she left her children in PNG) are slightly different to what the applicant stated in her initial statutory declaration in 2013 provided to the Department that she left her children behind because she did not have the money to pay for them to come to Australia and they did not have passports. 

   [4] See for example, DFAT Country Information Report Papua New Guinea 10 February 2017 at 3.32 – 3.39.

2. The Tribunal has also given little weight to the letter from [Mr B], RPNGC submitted as evidence that her husband was violent toward her and she reported him to the police in 2011 given the following concerns.

   a)In her initial statutory declaration provided to the Department the applicant states that in 2011 she went to the district police station at [District 1] to report what her husband was doing to her and they told her it was a personal matter and to go home and solve the problem herself with her husband.  The delegate doubted her claims in this respect because country information indicated that the police station in question was closed at the time.  In response to the delegate’s concerns (set out in a letter to the applicant as recorded in the delegate’s decision record, a copy of which was provided to the Tribunal) and in her oral evidence to the Tribunal, the applicant said because the police station was closed at the time she went to area of district offices where police usually patrol, approached a police man ([Mr B]), and told him her husband had been violent towards her.  The letter she provided from [Mr B][5] to the Tribunal broadly reflects her evidence in this regard.  Although this explanation was provided after the delegate had written to the applicant indicating that country information indicated the police station in question was closed at the time, the Tribunal may have accepted the applicant’s explanation as plausible.  However the applicant’s vague oral evidence at hearing about her alleged interactions with the police officer at the time (and motivations for reporting her husband given her claims that it was futile to go to the police in PNG in relation to domestic violence matters because they will not do anything and say it is a private matter) casts doubts as to her interactions with the police at all.  For instance, she was unable to state whether she contacted the police officer because of a specific incident or not. As well, she could not remember what the police officer told her to do (or not to do) at the time, apart from stating that he told her to come back to them if her husband tried to do something (else).  However this is inconsistent with her statutory declaration provided to the Department where the applicant claims to have gone to the district police station at [District 1] and was told it was a personal matter and to return to her husband as mentioned.  Also at odds with the representative’s written submission to the Tribunal: that is the one time the applicant found courage to seek help from the police she was told it was a personal matter between her and her husband and that they would not help. 

   b)In her statutory declaration dated 2 March 2015 the applicant said she went to the police in 2011 because she truly believed her husband was going to kill her then.  However in the representative’s submission to the Tribunal it is submitted that it was only after the applicant returned from Australia that her husband’s behaviour made her truly afraid for her life. 

   [5] The applicant told the Tribunal that her sister [obtained] the letter from [Mr B] – who still works in [District 1].  

3. For these reasons the Tribunal does not accept that the applicant reported any incident of domestic violence experienced at the hands of her husband in the past in PNG to the police and gives the letter provided allegedly from [Mr B] little weight.

4. Given these considerations, whilst the Tribunal accepts the applicant’s claims that her husband was verbally and emotionally abusive in the past, and may have also been physically violent toward her at times it is of the view that she exaggerated her claims in this respect.  It is willing to accept he may have hit her in the right eye in 2006 but based on her own oral evidence finds that she was hospitalised as a result for a day, not two weeks as set out in the letter from the hospital provided.  Despite concerns with aspects of the applicant’s evidence as discussed above, the Tribunal also accepts the applicant’s claims that she was hit on the head with a piece of timber in 2010 by her husband, that he broke her nose in 2011 and he raped her in Port Moresby in around April 2013 noting her claims in this respect have been consistent.  These are all instances of serious harm.

5. However, for the reasons that follow, the Tribunal is not satisfied the applicant would suffer serious harm from her husband in the foreseeable future if she returned to PNG.  The applicant gave evidence that she has separated from her husband and has had no contact with him since she left PNG in April 2013 and he has not contacted her.  In her initial statutory declaration provided to the Department dated June 2013 the applicant stated that her sister had called her once when she was in Australia and said that [(her husband)] been around to her family home yelling at them to tell her where she was.  At hearing she said when she first came to Australia he was verbally abusive to their children, describing her as “long long” (mad), according to her sister however she did not provide any details such as where or when this took place.  The applicant also claimed her husband had threatened to kill her if she ever returned to PNG via her father and sisters after she left the country however her oral evidence was vague and lacking in detail and the Tribunal does not accept her claims in this respect.  For example, the applicant said [her husband] threatened her father and sisters after he returned from Port Moresby – where [Ms A] had told him she had gone to Australia – to Enga by telling them if she came back he would murder her however she was unable to state where this took place exactly or when or provide any further details or context.  

6. Furthermore, when asked the last time her husband threatened her family members (if at all) the applicant replied ‘sometimes’ when he sees them he says she is lucky to be in Australia but her evidence was vague and lacking in details with no timeframe or context provided.  The Tribunal therefore does not accept her claims in this regard.

7. For these reasons the Tribunal does not accept that the applicant’s husband has threatened her via her family members who have remained in PNG as claimed.  Nor does the Tribunal accept her husband has made threats through (and to) [Ms A] since her departure from PNG, because of these concerns and for the following concerns about her evidence in this regard.  That is, at hearing the applicant said after she left PNG [her husband] went to [Ms A]’s house in Port Moresby and asked where she was.  [Ms A] lied initially and said she had gone out with friends however because he continuously threatened [Ms A] over a number of days she told him she had gone to Australia.  The applicant did not mention that [her husband] continued to threaten [Ms A] and her family or that [her husband] was pressuring [Ms A] to pay compensation to [the applicant]’s family and tribe which is what is stated (among other things) in [Ms A]’s letter provided to the Department.  The Tribunal notes further that the claim that [her husband] was pressuring [Ms A] to pay compensation to [the applicant]’s family and tribe does not make sense given the applicant’s claims that [her husband] will not let her live in peace until the bride price is repaid and that her family and community must repay the bride price, not her friend, [Ms A]. 

8. For these reasons the Tribunal does not accept the applicant’s husband has made any threats towards the applicant since her departure: this includes via her family or any third parties such as [Ms A]. 

9. The Tribunal also notes the applicant gave evidence that her husband has looked after their children, including her sister’s children, until recently (with the exception of their son), and he attended her father’s funereal in late 2016 without causing any problems.  This, combined with his lack of contact and threats toward the applicant since she left him, indicates that he does not hold any serious ongoing animosity toward the applicant for any reason.  Further, he has remarried once, and appears to be about to marry his third wife and has two more children.  The representative submitted that no matter how many wives he has, he will never let the applicant escape unharmed because she wounded his pride and community standing  by leaving him and the applicant told her that he would never let her live in peace with her children on return to PNG and is afraid he will physically harm her or kill her on return.  As well, because she remains married under customary law she will not receive police or community protection from his violence.  At hearing the applicant claimed that the ‘hatred is still in him’ because she left him and for other reasons discussed earlier.  The Tribunal accepts the applicant is still married to her husband under customary law in PNG and the bride price has not been repaid (discussed in more detail below).  However her claim that the ‘hatred is still in him’ and the submission that he will not let her live in peace because she wounded his pride, among other things, is inconsistent with the lack of action or threats by him either to her directly or through her family members and friends who have remained in PNG since she left him in April 2013. 

10. The Tribunal has considered the submission that until the bride price is repaid the applicant’s husband would continue to be a threat.  In her written submission to the Tribunal the representative argues that the applicant’s family were never in a position to repay the bride price and less so after her father’s death.  Reference is made to country information about the bride price tradition in PNG, noting among other things, that women are essentially sold to their husband’s family as part of the transaction.  An excerpt from a 2006 report from Amnesty International is included in the submission which refers to the difficulty in leaving situations of domestic violence for fear of the bride price having to be repaid in PNG.  

11. At hearing the applicant said she cannot repay the bride price because it has to come from her family or community, however many members are now dead (including her father).   In her March 2015 statutory declaration the applicant explains that the tradition involves the whole community, not just her family and that her bride price was distributed among many relatives, many of whom are now dead and the ones who are alive are not willing to pay back the money received.  This is why, she argued, no one will help women leave abusive relationships and people like her who run away bear the anger and scorn of the community.  The representative submitted at hearing that because the bride price was paid into the community the family has to obtain contributions from the community to repay it. 

12. The Tribunal does not accept these submissions.  The applicant has had no contact with her husband since she left PNG in April 2013.  Her evidence about his threats to family members and friends who have remained in PNG was vague and the Tribunal does not accept her claims in this regard.  The Tribunal finds his lack of contact with her (and her family) indicates that he has no interest in pursuing her.  The Tribunal also notes the applicant had access to money to pay for her return airfare to Australia in April 2013 and works in Australia. The representative submitted that the applicant sends money from her work in Australia to her family in PNG.  This money could have been used to repay the bride price if the applicant genuinely feared being harmed by her husband whilst this debt is outstanding.  The money could have been given by her family and/or community members and the applicant’s husband would not have needed to know the source of the money.   The Tribunal notes in his letter the former ward councillor confirms the bride price payments in the applicant’s case being shared among relatives, that often it is the immediate family who are faced with the burden, and the applicant’s father who (was) old and infirm cannot organise the resources to repay the bride price.  However he does not indicate that to repay the bride price it has to be via the exact same relatives who accepted the money in the first place and the Tribunal considers this submission purely speculative.

13. For these reasons the Tribunal finds the applicant does not face a real chance of serious harm at the hands of her husband if she returns to PNG.  The Tribunal makes this finding on the basis that she has had no contact with her husband since leaving PNG in April 2013 and he has not threatened her since then, either directly or via her relatives or friends who have remained in PNG.  Furthermore, on the basis of the findings above, the Tribunal finds there is nothing to indicate that the applicant’s husband would seek to threaten or harm her should she return to PNG in the reasonably foreseeable future for any reason advanced.

14. The Tribunal accepts the applicant has separated from her husband in early 2013 and as such would return to PNG as a single mother, single woman, and separated/divorced woman.  It has been submitted that as her father has died she would also be returning to PNG as a woman without male protection.  The applicant stated at hearing that in PNG women and children are not protected by the law.  The Tribunal accepts that single women, single mothers and separated/divorced women in PNG can face discrimination and hardship. However, the applicant does have some family members who can support her on return including her brothers (one brother and one half-brother[6]), has some education (up until year [grade]) and work experience including in Australia in [a certain] field indicating she is resourceful and financially independent.  Given these considerations the Tribunal finds remote the chance the applicant would face serious harm on return to PNG as a single mother, single woman and/or separated/divorced woman without male protection.  Her fears of persecution on this basis are not well founded.

    [6] The applicant claims they are too young however at hearing she said they are aged [age] and [age].

15. The Tribunal has also considered if the applicant faces a well-founded fear of serious harm from the community due to her membership of a particular social group of women who have suffered domestic violence.  As this group is defined by the shared persecution that they fear, the Tribunal is not satisfied this is a relevant particular social group under the Refugees Convention, noting Gleeson CJ, Gummow and Kirby JJ in the joint judgment in Applicant S v MIMA summarised the determination of whether a group falls within the Article 1A(2) definition of ‘particular social group’ in this way:

    First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.[7]

    [7] Applicant S v MIMA (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ.

1. The Tribunal has also considered whether the applicant faces a well-founded fear of persecution more generally as a woman in PNG.  The representative provided country information[8] about the treatment of women in PNG to the Tribunal, which indicates, among other things, that PNG is one of the most dangerous places in the world to be a woman and violence against women is one of the country’s most serious human rights concerns.  It is submitted that according to research, at least 55 per cent of women are raped and up to almost 100 per cent of women in parts of the Highlands experience violence at the hands of their husbands.  At hearing the representative submitted that domestic violence in the Highlands is regarded as usual and acceptable with reports indicating that more than 90 per cent of women are subjected to violence.  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 for reasons above the Tribunal has found the applicant is now separated from her husband and does not face a real chance of serious 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 and the applicant has not submitted any information that indicates she has or will experience serious harm as a woman in PNG.  On the information before it, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm at the hands of anyone as a woman on return to PNG.   

   [8] Including from Human Rights Watch, World Report 2017 – Papua New Guinea, 12 January 2017, Human Rights Watch, Papua New Guinea: Fight Corruption and Police Brutality, 12 January 2017, Human Rights Watch, Papua New Guinea: Address Abuses at UN Review, 4 May 2016, and United States Department of State, 2015 Country Reports on Human Rights Practices – Papua New Guinea, 13 April 2016,

2. Accordingly and for reasons above, the Tribunal finds the applicant does not face a real chance of serious harm from her husband for any reason on return to PNG.  Nor does she face a real chance of serious harm on return from the authorities or the community more broadly as a ‘separated/divorced and/or single women from PNG’ or as a ‘woman in PNG’.   The Tribunal finds the applicant does not have a well-founded fear of persecution on return to PNG. 

   Other matters:-

3. As set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review, notes contained on the Departmental file indicate that the Department received an anonymous allegation [in] September 2013 that the applicant was providing a ‘fake’ story as to why she cannot return to PNG and her life was not at risk in PNG.  At hearing when the information contained in the allegation was discussed the applicant said it is a lie and she suspects it came from a woman in Australia [who] is suspicious of other PNG women here, has a younger boyfriend, and often argues with other PNG women at functions.  The representative submitted that because it is unsubstantiated and false, the allegation should be disregarded.  As discussed at the hearing, given the allegation is anonymous and unsubstantiated, the Tribunal gives it no weight.

   Complementary protection

4. As the Tribunal does not accept that the applicant has a well-founded fear of persecution the Tribunal has considered the alternative criteria in s.36(2)(aa), whether 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 that she will suffer significant harm as defined in subsection 36(2A) of the Act.

5. On the basis of the applicant’s claim to be a national of PNG and her PNG passport, the Tribunal finds that PNG is the applicant’s receiving country for the purposes of s.36(2)(aa).

6. It is submitted that there is a real risk that the applicant will suffer significant harm if being removed from Australia to PNG in the form of arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment at the hands of her husband.

7. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will face serious harm from her husband for any reason, or as a single or divorced/separated woman, or as a woman generally in PNG on return to PNG, or for any other reason.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[9] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone on these bases as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG.

   [9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

8. 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.

9. On the material before it, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG.

   CONCLUSION

10. 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 Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

11. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. 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

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

    Nicole Burns
    Member