1509438 (Refugee)

1509438 (Refugee) [2017] AATA 1819 (13 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509438
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Nicole Burns
DATE:13 September 2017
PLACE OF DECISION:  Melbourne
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 September 2017 at 5:16pm

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Particular social group – Women– Victim of domestic violence – Dire lack of services – No state protection

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

CASES
MIMA v Khawar(2002) 210 CLR 1

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Papua New Guinea (PNG), applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] June 2015.
The applicant appeared before the Tribunal on 15 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mental health considerations
In her statutory declaration provided to the Tribunal the applicant states that she suffers extreme stress and anxiety because of the abuse she suffered in PNG and that because of her mental health problems has trouble remembering dates and event details.
It has been submitted that the applicant’s memory has been affected by the violence and trauma she has experienced in the past at the hands of her husband, her mental health issues, limited education and her ‘cognitive impairment’. Evidence has been provided to the Department[1] and the Tribunal[2] indicating that the applicant suffers from [Condition 1] - secondary to the domestic violence she experienced for many years in PNG - which resulted in [a specific symptom] in September 2014 in Australia leading to hospitalisation, being placed on a temporary treatment order, and ongoing psychiatric care including counselling and medication. A [medical] assessment report[3] with respect to the applicant was also provided, which concluded, among other things, ‘severe global cognitive impairment’. Based on this evidence the Tribunal accepts the applicant has been diagnosed with [Condition 1] and [Condition 2] and has experienced [Condition 3] in the past in Australia which has required hospitalisation and ongoing treatment. Whilst the Tribunal is reluctant to accept a conclusion of severe cognitive impairment in the applicant’s case based on one interaction without an interpreter, it is willing to accept that she has had very limited education – one year only – and is illiterate. Combined with the trauma experienced over years of suffering violence, the Tribunal accepts this may result in her having problems with memory.
Nationality
[1] [Details deleted.].
[2] [Deleted.].
[3] [Deleted].
Based on a copy of the applicant’s biodata page of her PNG passport on the Departmental file, 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.
Refugee assessment
The applicant, [an age] year old woman from [City 1], Western Highlands Province, PNG, seeks to invoke Australia’s protection obligations on the basis of fearing serious harm at the hands of her husband.
A number of written submissions[4] have been provided to the Tribunal in which the representative sets out the applicant’s claims, clarifies inconsistencies or other issues with her earlier evidence, and refers to country information to support her contention that the applicant faces a real chance of serious harm from her husband and she will not receive adequate protection from the authorities in PNG because of her membership of the following particular social groups:
·Women in PNG; and/or
·Women who have suffered domestic violence in PNG; and/or
·Women without male protection in PNG; and/or
·Women who have a cognitive impairment/disability.
[4] Dated 10 March 2017, 5 April 2017, 16 June 2017, and 19 June 2017
The applicant set out the history of her marriage to her husband, [named], and the violence she experienced from him over a number of years which precipitated her decision to leave PNG [in] April 2014 in a statutory declaration[5] provided to the Department, a statutory declaration[6] provided to the Tribunal and her oral evidence to the Tribunal at hearing, summarised as follows.
[5] Dated [in] July 2014
[6] Dated 6 March 2017
The applicant told the Tribunal she married her husband in [year]. Her ‘bride price’ was [amount] kina[7], one cow and 10 pigs, according to her statutory declaration provided to the Department. She said after her marriage she lived with her husband in his [village] in [City 1] – until she ran away to Port Moresby before coming to Australia in April 2014. At hearing the applicant was unsure when she arrived in Port Moresby however the Tribunal notes that in her statutory declaration provided to the Department she stated that she ran away to Port Moresby a few days after an incident in January or February 2013 when her husband tried to strangle her. She told her [children] (now aged [ages]) that she was going to leave about a week beforehand. Her [relative] in [City 1] [drove] her to the airport. In Port Moresby she stayed with a [friend] – whilst her [relative] sorted out the necessary paperwork (that is her visa and passport) in order for her to leave PNG. She said she did nothing and rarely left [her friend’s] house during this period. Once [the relative] told her the paperwork was ready, she left. He paid for her ticket to Australia.
[7] Equivalent to AUD [amount] as at 7 September 2017,
At hearing the applicant could not recall exactly when her husband started to become violent toward her, but said it started before her [children] were born and continued after. (The applicant’s first [child] was born in [year], according to the applicant’s statutory declaration provided to the Department). It first came about when he was dealing with drug issues and she was blamed for everything, for example if his business was going wrong (the applicant said her husband owned [specified businesses] in [City 1]). She has suffered a number of assaults from her husband over the years, some serious, including him breaking her [body part] (in 2011 according to her statutory declaration). In her statutory declaration provided to the Department the applicant stated that her husband started to become violent toward her in 2000 around the same time that he started to see other women however at hearing the applicant was not sure about that, but noted he may have seen prostitutes.
In her statutory declaration provided to the Department the applicant stated that her husband cut her [body part] with a knife and [injured her] by throwing a coffee cup at [her] in June 2000; broke her [body parts] in 2011; threatened her and pointed a gun at her head before firing a shot in the air in 2012; and that ‘every day’ he was physically abusive for example by hitting, slapping and kicking her as well as humiliating her by calling her degrading names.
The applicant told the Tribunal that leading up to her decision to leave her husband he became increasingly violent and started strangling her almost every month. This was in around 2012. He attempted to strangle her one night in January or February 2013 and she only survived after her [children] ran next door and alerted their neighbours. The applicant stated that she was afraid her husband would kill her, which is why she had to leave, and to leave her [children] with him.
The applicant said she also left her husband’s [number] children from his first marriage whom she had raised since she married her husband in [year]. She was not sure what had happened to their biological mother.
The applicant told the Tribunal she never went to hospital or sought medical treatment in [City 1] following the violent incidents perpetrated by her husband because he threatened her with further violence if she did. For the same reasons she never reported his violence to the police, fearful that the police would tell her husband that she had done so and he would hit or kill her. Whilst in Port Moresby she visited a hospital with her brother, because her [body part] was still sore and she wanted to get a letter to support her protection visa application (a copy of which she provided to the Department). She also telephoned a police [officer] based in [City 1]– whilst in Port Moresby and asked her to write a letter to support her application, noting that the [officer] knew her husband and what the applicant had been going through. She told the Tribunal that one day at a market in [City 1] [this officer] had approached her and asked if she was experiencing issues with her husband: however the applicant said that it was difficult to talk about and then left. In her statutory declaration provided to the Department the applicant said that she never reported her husband to the police because they knew her husband well. That is police officers regularly came to their house or [his business] and received free [products] and money from him: she thinks so they would leave him alone ‘for his improper business dealings’.
At the hearing the applicant said she fears her husband will kill her if she returns to PNG because she left him and because as she has not repaid the bride price, he can do what he wants. She referred to him a as a ‘big man’ in [City 1], explaining that he is known because he owns businesses (some illicit) and has ‘materialistic stuff’.
In her statutory declaration provided to the Department the applicant said her husband also used to take away her money she made from selling [products] in the market.
In her written and oral evidence to the Tribunal the applicant said she telephones her [children], who remain living with their father in [City 1], about every fortnight and sends them around AUD [amount] a month. They hide from their father when they talk to on the phone. However on one occasion - the applicant said at hearing it was either last month or last year – when she rang her husband grabbed the phone and told her she is lucky that she was in Australia otherwise she would be dead. That this is the last time she has spoken to him.
At hearing when asked if, to her knowledge, her husband tried to find her after she ran away from him in early 2013, the applicant replied that she is not sure but ‘maybe’ he would have, noting that he was a business man who could go anywhere.
When asked if she had ever considered divorcing her husband, the applicant replied “no”. She said it would be hard for her to do that, reiterating that when she lived in [City 1] her husband did not want her to see the police or doctors and threatened to kill her if she did. When asked about the process for divorce when married under customary law in PNG, the applicant said if the bride price is repaid then divorce is possible but otherwise it is difficult. She said her father (who died in [year]) tried to repay half of her bride price but her husband told him he did not want half and that he wanted the applicant.
The applicant said she has family members who remain living in [City 1] – that is [specified relatives]. Her husband prevents her [children] from seeing them because of the bride price and because he does not want them to be part of her family.
In her statutory declaration provided to the Department the applicant states because she has spoiled her husband’s reputation by leaving him and going to Australia, and because he is a well-known member of the community, he will want to punish her or kill her if she returns. Because of the bride price, he believes she is his property and he can do what he wants.
The Tribunal finds the applicant has made generally consistent claims about her past experiences in PNG and why she fears returning there. The Tribunal accepts the applicant married her husband according to custom in [year], her family and community were paid a bride price as set out above, and that she lived with him thereafter in [City 1] up until sometime in early 2013 when she left him. It accepts they have [children] who live with their father in PNG and their [number] siblings from the applicant’s husband’s first marriage. It accepts the applicant’s husband subjected her to years of physical and emotional abuse and threats, including a number of very serious incidents such as attempted murder and serious physical injury as set out above. The Tribunal notes that the applicant’s oral evidence about these (and other) incidents including the timing and sequencing was vague and at times confused at hearing. However the Tribunal is satisfied such vagueness is largely attributable to the trauma she experienced, the passage of time, her limited education (completing one year of schooling only) and her mental health issues as set out above, as submitted, not a deliberate attempt to be evasive.
In reaching this conclusion about the applicant’s past experiences of violence at the hands of her husband, the Tribunal has had regard to photographs submitted by the representative to the Department of the applicant’s physical scars, some of which were also displayed at hearing. These photographs were accompanied by a letter[8] from [a doctor] who, after examining the applicant, concluded that her scars were consistent with her report of multiple assaults as well as a letter[9] from [a health provider] provided to the Department confirming ‘gross deformity of the [body part]’ with respect to her (untreated) fractured [body part].
[8] Dated [in] July 2014
[9] Dated [in] April 2014
As discussed at hearing, the Tribunal does have some concerns with aspects of the applicant’s claims to fear serious harm from her husband, as follows.
First, the fact that the applicant left her young [children] with her husband given her claims that they were also victims of his violence and lived in fear. When asked at hearing if she considered taking them with her, the applicant replied that she knew it was going to be hard to support her [children]. Although a concern, the fact that she left her [children] behind is understandable given her limited resources and knowing taking them without her husband’s permission would have likely resulted in a greater risk of harm to the applicant and her [children].
Second, the Tribunal finds it odd that the applicant told her [children] that she was planning to leave a week before hand: both from a risk point of view if her husband found out and in terms of their supportive reaction given they were young and fearful themselves. For these reasons the Tribunal does not accept that the applicant told her [children] she was leaving.
Third, the Tribunal doubts the extent of the applicant’s husband’s ongoing adverse interest in her after she left him in early 2013 (as did the delegate) for a number of reasons. These include the fact that the applicant stayed in Port Moresby for around a year after she left her husband in [City 1] and yet he did not locate her or appear to make any effort to find her; the fact that she stayed in Port Moresby for almost a year after her [temporary] visa to Australia was granted[10] (and she already had her passport, issued in 2011); her vague oral evidence about her husband’s reaction (according to her [children]) when he discovered she had ran away; and the fact that apart from threatening her over the telephone when she rang her [children] from Australia once, there is no indication that her husband has threatened her via other family members for example, since she left PNG. The applicant has provided explanations for some of these concerns. For example she claims her husband did not find her when she lived in Port Moresby because she was in hiding, rarely left her friend’s house, and that she relied on her [relative] to make the necessary arrangements for her to depart. At hearing she was confused about how long she actually spent in Port Moresby, and did not remember much of that period, noting that she left all the arrangements – including obtaining her visa – to her [relative], and as such did not know when he applied or when visa was granted[11]. Taking into account the applicant’s mental health issues, which for reasons above the Tribunal accepts as significant and ongoing, the Tribunal is willing to accept the explanations provided explain some of the Tribunal’s concerns. Furthermore, combined with her mental health problems, the inherent difficulties in recollecting traumatic events, and the passage of time, in this case the Tribunal is willing to accept the applicant’s vague evidence about aspects of her claims – in particular her husband’s interest in her after she left him and her time in Port Moresby – is attributable largely to these factors and not a deliberate attempt to mislead the Tribunal. The Tribunal notes in this respect that it found the applicant at hearing to be vague with respect to most of her oral evidence, not just on these matters, which lends weight to the assessment in the medical and other reports provided that her memory function has been significantly impaired.
[10] [In] April 2013
[11] She states that her July 2014 statutory declaration incorrectly stated that she lodged her [temporary] visa application.

The Tribunal has had regard to the letters the applicant provided to the Department from the police [officer] in [City 1] and from a doctor from the [Hospital]. As discussed at hearing, because these letters contain some information that is contrary to the applicant’s claims, they detract from her case and cast doubt on her overall credibility. For example,
a)The discrepancies in the police report include that the applicant visited [a named police office] in [City 1] to lay a complaint about domestic violence and was referred to a section to charge her husband whereas she told the Tribunal (and delegate) that she never reported her husband to the police in [City 1] out of fear. The applicant said when she was in Port Moresby she contacted the police [officer] in [City 1] in March 2014, told her she had ran away from her husband, and asked her to provide a report about her domestic violence experience, which she agreed to do. The police [officer] then sent the applicant the report whilst she was in Port Moresby and the applicant submitted that report with her application without reading its contents.
b)The discrepancies in the hospital report include that the applicant presented to the emergency department in Port Moresby ‘on several occasions’ however she told the Tribunal she went to the emergency department [in] May 2013 because she had severe pain in her [body part] from when her husband broke it in 2011; she felt dizzy due to high blood pressure; and she wanted to get a report of her domestic violence injuries to support her claims. She said whilst there she saw [a doctor] and told him about her history and he wrote the report; however she did not read it before submitting it to the Department.
The applicant stated she only discovered the contents of both reports when a legal volunteer at [an organization] read them to her [in] June 2014. She said that she is unsure why the doctor and police [officer] included incorrect statements in their reports but speculated it was because they were trying to help.
Although not without doubt, the Tribunal is willing to accept the applicant’s explanations provided about the discrepancies contained in the letters from the police [officer] and doctor from the [Hospital] she had submitted in support of her visa application. Having accepted she is illiterate and cannot read English, the Tribunal does not find it surprising that she did not read the contents of the letters before submitting them to the Department. It notes that as soon as the applicant realised the contents of the letters contained erroneous information in part, she submitted a statutory declaration to the Department[12] advising of such and detailing the mistakes. Since then her evidence to the Department and Tribunal about what is the correct information contained in the letters, her process of obtaining them, and the reasons why she thinks they contain discrepancies has been consistent.
[12] Dated [in] July 2014
Taking into account these considerations and for reasons set out above, the Tribunal is of the view that the applicant’s husband did not take a particular interest in her since she left him in early 2013, evidenced by his lack of contact, including when she remained in Port Moresby for over a year after she left him in [City 1]. It accepts that he may have threatened her once over the phone since she arrived in Australia, but nothing more. Nonetheless, the Tribunal accepts the applicant’s husband subjected her to many years of violence and abuse, has threatened her since she left him, remains married to her under customary law, and has refused to accept half of the bride price offered to him by her late father as submitted, which is indicative of someone who wants to continue to control and punish her. It also accepts that he is powerful and well known in [City 1], operates several businesses and has connections with the local police as submitted. The Tribunal notes in this regard the applicant’s claims[13] (which it accepts) that her husband was arrested by the [police] in [year] in [City 1] for being involved with drugs; extradited to [a city in another country] for a court hearing; found guilty of supplying [drugs]; and sent back to PNG where he served a [term] sentence. Given these considerations, combined with country information referenced below about the prevalence of domestic violence in PNG (in particular the Highlands provinces, which includes the applicant’s home area) and lack of state protection to combat such violence, the Tribunal finds the applicant faces more than a remote chance of serious harm at the hands of her husband if she returns to [City 1] in the foreseeable future.
[13] In her statutory declaration provided to the Department dated [in] July 2014.
The independent country information about PNG including that provided and/or referred to by the representative in her written submissions to the Tribunal indicates that domestic violence is pervasive throughout PNG. It is widely viewed as a private matter and is often accompanied by a culture of silence and impunity. For example, DFAT in their recent country information report on PNG state as follows.
Levels of violent crime against women are extremely high across PNG. Domestic or family violence is particularly endemic. The precise number of women who experience violence at the hands of a partner or family member is unknown – statistics are unreliable, and there is a social stigma in PNG about reporting. Human Rights Watch (HRW) published a report on family violence in PNG in November 2015 that found that the problem continued to be pervasive throughout the country. An earlier survey, published in 2013, found that 80 per cent of men in Bougainville reported that they had perpetrated physical and/or sexual violence against a partner. A March 2016 report from Medicins Sans Frontieres (MSF) detailed how a dire lack of protection mechanisms, a weak justice system and a culture of impunity endangered the health and lives of victims of violence even if they managed to reach medical care.
...
The November 2015 HRW report found that police and prosecutors rarely pursued criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Police often demanded money from victims before they would act, or simply ignored cases occurring in rural areas. Police appeared reluctant to refer survivors for protection orders, and survivors who sought protection orders frequently encountered delays in the courts. When police did get involved in family violence, they typically mandated mediation and reconciliation for the couples involved.
The November 2015 HRW report found there was a dire lack of services for people requiring assistance after suffering family violence. Most areas had no safe houses, and no area had enough. Qualified counsellors were largely non-existent, case management was rarely provided, legal aid was almost entirely absent, and there was no safety net to assist survivors, particularly those with dependent children, who needed temporary support and assistance to leave their abusers and become financially independent.
The Family Protection Act (2013) makes family violence a crime, punishable by up to two years and/or a fine of PGK6,000 (AUD2,750). The Act also created new mechanisms, including establishing Family and Sexual Violence Units (FSVUs) in police stations and Family Support Centres in hospitals, to protect and assist victims of family violence. As of the publication date, 15 FSVUs were operational nationwide, staffed primarily by female RPNGC officers. All were under-resourced, and only able to operate for limited hours despite considerable demand for their services. Although the Act came into force in March 2014, as of the publication date it was yet to be fully implemented.
...
...DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in the Highlands provinces are at particular risk, although violence against women occurs nationwide. Women subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services[14].
[14] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 10 February 2017 at 3.34 and at 3.36 – 3.39.
The 2016 report by Médecins Sans Frontières (MSF) referenced by DFAT notes that in PNG 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. The report also talks about 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 underreporting of family and sexual violence. The report also relevantly states:
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[15].
[15] Médecins Sans Frontières (MSF), Return to Abuser: Gaps in Services and a Failure to Protect Survivors of Family and Sexual Violence in Papua New Guinea, 1 March 2016
With respect to the state’s response (or lack of) MSF state:
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.

...
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.
...
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[16].
[16] Op cit
DFAT and MSF’s assessment regarding the prevalence of violence against women in PNG and the lack of state intervention to protect women and prosecute the perpetrators is reflected in country information from other sources, including a 2015 report from Human Rights Watch;[17] a January 2017 World Report from Human Rights Watch[18]; a 2012 report of the Office of the High Commissioner, UN Human Rights Office[19]; and a 2015 Freedom House Report on PNG[20]; and news articles such as a March 2016 article in The Age (submitted by representative) [21].
[17] Human Rights Watch, Bashed Up: Family Violence in Papua New Guinea, 3 November 2015
[18] Human Rights Watch, World Report 2017 – Papua New Guinea, 12 January 2017,
[19] Office of the High Commissioner, UN Human Rights Office, Special Rapporteur on Violence against women finalises country mission in Papua New Guinea, 26 March 2012
[20] Freedom House, Freedom in the World 2015 – Papua New Guinea, 24 August.
[21] The Age, ‘Where Violence is a fact of life for many women’, 2 March 2016
A January 2016 statement from Human Rights Watch notes that PNG is one of the most dangerous places in the world if you are a woman or a girl with an estimated 77 per cent of women experiencing rape or assault in their lifetime. They also say police are very rarely prepared to pursue criminal investigations in cases of domestic violence, even when involving murder or repeated rape[22].
[22] Human Rights Watch, Papua New Guinea: Failing to Protect Women and Girls, 27 January 2016,
Violence against women and girls is highlighted as a major human rights concern in the most recent United States Department of State country report on human right practices in PNG, which states, for example that:
Rape and Domestic Violence: Gender-based violence, including sexual violence, gang rape, and intimate-partner violence, was a serious and widespread problem. In a 2013 UN survey, 80 percent of men in one province admitted perpetrating physical and/or sexual violence against a partner. A 2013 study by the Institute for Medical Research indicated 55 percent of women experienced spousal rape. According to Amnesty International, approximately two-thirds of women in the country were struck by their partners, with the figure approaching 100 percent in parts of the Highlands. Due to stigma, fear of retribution, and limited trust in authorities, most women did not report rape or domestic violence to authorities. Gangs used rape and violence against women as part of initiation.
Rape, including spousal rape, is a crime punishable by imprisonment ranging from 15 years to life. The legal system allows village chiefs to negotiate the payment of compensation in lieu of trials for rapists. The law criminalizes family violence and imposes penalties of up to two years’ imprisonment and up to 5,000 kina ($1,615) in fines in an effort to end the cultural practice of providing compensation to victims. Implementing regulations were not complete, however, and the law was not in effect.
Police committed widespread sexual violence and the unresponsiveness of authorities to complaints of sexual or intimate-partner violence deterred reporting of such crimes. 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 neighbors, 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.
There were 17 family and sexual violence units in police stations across the country. The government established these units with donor support to provide victims with protection, assistance through the judicial process, and medical care. Nevertheless, comprehensive services for victims of domestic and sexual violence were lacking in most of the country. This lack of services, along with societal and family pressure, often forced women back into violent and abusive homes.
...
Human Rights Watch reported there were only five shelters for abused women in Port Moresby, all run by faith-based organizations, which were often at full capacity and had to refuse women in need of 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.[23]
[23] US Department of State, Country Reports on Human Rights Practices for 2016 - Papua New Guinea, .
The same report states the following with respect to the ongoing tradition of ‘bride price’ and discrimination against women:
Other Harmful Traditional Practices: Customary bride price payments continued to increase. This, and the common practice of polygyny, contributed to the perception by many communities that husbands owned their wives and could treat them as chattel. In addition to being purchased as brides, women sometimes were given as compensation to settle disputes between clans, although the courts ruled that such settlements denied women their constitutional rights.
…
Discrimination: 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, however, requires district courts to endorse orders for imprisonment before the imposition of the sentence, and justices frequently annulled such village court sentences.[24]
[24] Op cit
While some legal reforms in PNG have meant there is some protection under the law for women who experience domestic violence and 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 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. Furthermore, as indicated in the MSF report cited above, in some cases the police (and military) perpetrate violence against women themselves.
Given these considerations and taking into account the above country information about the prevalence of domestic violence in PNG and what the Tribunal it accepts of the applicant’s experience of domestic violence (including serious violence such as attempted murder and serious injury) at the hands of her husband in the past, the Tribunal finds the applicant faces a real chance of serious harm at the hands of her ‘husband’ on return to [City 1] in the foreseeable future.
The applicant’s fear of harm is from an individual and the Tribunal finds that such harm would be primarily motivated by personal reasons. Even though gender considerations are relevant, including consideration of the status of women and in particular the perceived role of wives in PNG, the Tribunal finds that the applicant’s husband would seek to harm the applicant as an individual rather than for an essential and significant Convention-related reason. However, harm from private individuals or non-state agents may amount to persecution if the state discriminatorily withholds protection for a Convention reason: MIMA v Khawar (2002) 210 CLR 1. In that case, the High Court confirmed that the Convention test may be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related.

The applicant in her written and oral evidence to the Tribunal submitted that [a police officer] based in [City 1] and [responsible for] domestic violence complaints in the Western Highlands Province was aware of her husband’s history of violence towards her because the applicant spoke to her informally about it, and she encouraged her to make a formal complaint: however the applicant was too afraid to do so. Her claims in this regard are supported by the country information and the Tribunal accepts that she did not make a formal police complaint against her husband out of fear.
In her statutory declaration provided to the Tribunal the applicant states that her husband, who is friends with the local police (and gives them [products] and money) threatened to shoot her if she went to the police. The Tribunal accepts her claims in this respect. The applicant submits that as such she does not trust the police not to tell her husband; that bribery and corruption are prevalent in PNG; the law is not strong; and there is no protection for women fleeing domestic violence.
Country information set out above, including about the dire lack of services and inadequate police protection for victims of domestic violence – in some cases where police are complicit in facilitating the return of victims of family violence to ‘reconcile’ with the perpetrator of the violence or are the perpetrators themselves - indicates that despite recent efforts by the PNG government to introduce law reform and provide accommodation for victims of family violence and sexual assault, violence against women is widespread, state protection is ineffective, and perpetrators often act with impunity. Therefore the Tribunal accepts that there is a widespread and systemic failure to properly protect women and girls in PNG from violence, and this is the case not withstanding laws criminalising domestic violence. The Tribunal finds that the applicant as a woman in PNG would face a systemic and discriminatory failure by agents of the PNG state to properly enforce the law.
For these reasons the Tribunal finds that there is a real chance the applicant would be discriminatorily denied state protection against serious harm at the hands of her husband for reason of her gender and membership of a particular social group of women in PNG on return to [City 1]. The Tribunal finds that this reason would be the essential and significant reason for withholding state protection and this would be systematic and discriminatory because it is targeted at women specifically.
The Tribunal has considered if the applicant could avoid the harm she fears from her husband in [City 1] by living somewhere else, for example Port Moresby where she lived for over a year after she ran away from her husband and before coming to Australia. At hearing the applicant said she fears her husband will find her wherever she lives. She is also worried about being able to cope without the help she receives in Australia with her mental illness. The representative submitted that relocation is not reasonable in the applicant’s case given her ongoing mental health needs that require support. Also her risk of harm exists throughout the entire country because her husband, who feels he owns her, will try and find her. In her statutory declaration provided to the Department the applicant states there is nowhere in PNG she would be safe, noting that violence and sexual abuse against women occurs everywhere. She also said that she still feared her husband whilst living in Port Moresby, noting that he was a businessman and regularly travelled there (and to other places). She claimed to have kept a low profile whilst in Port Moresby, staying with people belonging to her tribe. Although her oral evidence was somewhat vague about her time in Port Moresby, for reasons above the Tribunal accepts that is due to her mental health status and trauma experienced, among other factors, and is willing to accept her claims that she kept a low profile whilst there, to avoid her husband whom she feared would kill her.
For reasons above, including contemporaneous evidence from health professionals, the Tribunal accepts the applicant suffers from [Condition 1], has experienced [Condition 3] and [Condition 2] in Australia and has experienced significant violence and trauma in PNG in the past. For this reason the Tribunal is not satisfied relocation would be reasonable in the applicant’s case. Given this finding it has not been necessary for the Tribunal to consider the other submissions about relocation.
Having regard to the above, the Tribunal finds in all of the applicant’s circumstances that she faces a real chance of serious harm from her husband on return to PNG for the essential and significant reason of her membership of the particular social group of women in PNG. The Tribunal finds that she has a well-founded fear of being persecuted on return to PNG now or in the reasonably foreseeable future.
For these reasons the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the relevant criterion under section 36(2)(a) of the Act.
There is nothing before to the Tribunal to suggest that the applicant has a right to enter and reside in any third country such as that she would be excluded from Australia’s protection.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Nicole Burns
Member

[2017] AATA 1819

13 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Jurisdiction