1512766 (Refugee)

[2017] AATA 591

1512766 (Refugee) [2017] AATA 591 (22 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512766

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Andrew Mullin

DATE:22 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first-named Applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other Applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named Applicant.

Statement made on 22 March 2017 at 11:54am

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Particular social group – Women – Abusive domestic relationships – Phases of domestic violence – Denial of effective protection – Internal relocation – Bride price

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the Applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The Applicants, who claim to be, respectively, mother and five children and citizens of Papua New Guinea, applied for the visas [in] August 2014 and the delegate refused to grant the visas [in] August 2015.

3. The Applicants were represented in relation to the review by their registered migration agent.

4. Only the first-named Applicant has made specific claims under the Refugees Convention, her children relying on their membership of her family.  For convenience, therefore, I will refer to the first named Applicant as the Applicant.

   RELEVANT LAW

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.

   CLAIMS AND EVIDENCE

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

11. In her protection visa application and an accompanying statutory declaration dated 1 September 2014 the Applicant claims, in summary:

    ·She was born in [her home village in] Western Highlands Province, Papua New Guinea, in [year].  She lived in [that village] until [year] and then in [Village 1] until [year].  She then moved to an address in [Village 2] (also in Port Moresby) where she lived until July 2014.  She received a total of [number] years of formal education in [a town], ending in [year], and was employed as [an occupation 1] from 2008 to July 2014. 

    ·She met her husband [named] when she was [age] years old and in [school level].  They married in a traditional ceremony in [year] and her husband paid a bride price to her family.  She lived with him in his village of [Village 1] from [specified year] to [year] then moved to Port Moresby when he obtained a job in a [business] there.  In Port Moresby they lived in his parents’ home in [Village 2].  They had five children.

    ·Their marriage was peaceful until 2009 when she discovered her husband was having an affair with a woman whom he subsequently married as his second wife.  When she found him drinking with this woman she confronted them and tried to hit her.  A group of about fifteen of her husband’s family members who were present beat her and stripped her naked.  She was cared for by a woman in a nearby house.

    ·She became the breadwinner for herself and her children, working as [an occupation 1] selling [products].  She was able to support her children in this way and bought a car.  She sold the car to pay for their travel to Australia.

    ·In January 2013 her husband’s new wife drove by her home with some of her husband’s relatives.  An altercation ensued, during which she and one of her daughters suffered violence. 

    ·There was a further confrontation at a funeral in February 2013.  Her in-laws had been spreading rumours about her having a relationship with another man.  Her husband believed the rumours and slapped her in front of the other mourners.  Her husband’s violent tendencies became more pronounced.

    ·There was another incident when her husband and his brother came to the house and beat and kicked her, breaking her [body part] in the process.

    ·In March 2010 she and her husband fought over his affair (in a further copy of the statutory declaration dated [in] May 2015 the date of this incident is amended to March 2013)  He yelled at her, threw sticks and stones at her, slapped her told her to move out.

    ·On [a date in] March 2014 her husband’s second wife came to the house with the intention of fighting her.  The Applicant still [was recovering from] the fracture to her [body part] and the second wife harmed the injury again.  She then poured hot water and oil over the Applicant’s daughter [Applicant 3], causing burns which required a skin graft and hospitalisation for a month.

    ·[In] July 2014 her husband and his second wife, together with her husband’s brother, came to her house.  A fight began when she told them she was going to take the children to Australia for a holiday.  Her brother-in-law pulled her under a fence causing injuries to her [different body part].  She was taken to hospital for treatment.

    ·She attempted to report the physical abuse to the police on several occasions but they never charged anyone and only gave her a telephone number to report if anything further happened.

    ·She fears her husband and his relatives will be angry with her for taking her children to Australia, particularly as she told them she was going for a holiday and would be returning.  They will kill her for this reason.

    ·She cannot avoid this harm by relocating within Papua New Guinea.  She cannot return to her village because her father has many wives and there is no space in the house for her or her five children.  Both her parents are old and she does not wish to impose on them.  They are aware of her problems but a bride price was paid and there is nothing they can do.

12. Attached to the application are photocopies of documents said to be:

    ·A domestic violence medical report from the [named section] of [a named hospital] dated [in] July 2013 stating that the Applicant was treated for lacerations and bruising suffered in an assault by her husband on [the previous day].

    ·A domestic violence medical report from the [section] of [the same hospital] dated [in] March 2014 stating that the Applicant was treated for a broken [body part] and bruising suffered in an assault by [name], her in-law, on that date.

    ·A discharge summary from [the named hospital] stating that [Applicant 3] was admitted on [a date in] March 2014 and discharged [the following month].  She was treated for superficial burns to her [body part].

    ·Two photographs of a child in a hospital bed with an adult – apparently the Applicant – standing to one side.

    ·A letter on the letterhead of the Royal Papua New Guinea Constabulary, [Police Station 1], dated [in] July 2014.  The letter records that the Applicant made a number of reports regarding her marriage, stating that her husband had married a new wife, leaving her and her children behind.  ‘She is currently going through extreme pressure from the relatives of the husband by accusing her of having extra marital affairs with other men.’  She felt her character had been defamed and was considering civil action.  ‘To conclude the husband is helpless to overcome the situation with his people.  If she needs assistance please do not hesitate to assist this family.’

13. In a submission dated [in] May 2015 the representative summarises the Applicant’s claims, canvasses legal issues and cites country information relating to the treatment of women in Papua New Guinea, the prevalence of domestic violence and sexual abuse and the inability or unwillingness of the police and other authorities to provide protection.  The representative submits that the Applicant has a well-founded fear of persecution in Papua New Guinea for the Convention reason of her membership of the particular social groups consisting of ‘women in Papua New Guinea,’ married women in Papua New Guinea,’ ‘married women in Papua New Guinea for whom a bride price has been paid,’ and ‘women subjected to domestic violence in Papua New Guinea.’  She also engages Australia’s complementary protection obligations as there is a real risk she would suffer significant harm if returned to Papua New Guinea.

14. Attached to the submission is a further copy of the Applicant’s statutory declaration, this time signed by her [in] May 2015.

15. The Applicant attended a protection visa interview [in] May 2015 and added to her previous claims, in summary, as follows:

    ·The house in [Village 2], Port Moresby, where she and her children lived up to the time of their departure for Australia was owned by her father-in-law.  Her brother-in-law and other relations lived there and people would come and go.  Her husband and his second wife had been living in in rented accommodation in [another location in] Port Moresby but she did not know if he was still there.  Her husband was working as [an occupation 2] but she did not know if he had any other businesses.

    ·Her marriage was a happy one up to 2009 and she experienced no domestic violence.  In that year her husband took another wife, breaking her heart, and he began to abuse her. 

    ·She had last contacted her husband in July 2014 when he was ready to go to his second wife’s [location] to pay the bride price for her.  She told him she wanted to go to Australia with their children for a holiday and, to please her, he gave her the money and organised the visas.  She had to sell her car to help pay for the tickets.  Asked about her claim that her husband had married the second wife five years previously, in 2009, she said the bride price can be paid either before or after the marriage and her husband began living with the new wife in 2009.

    ·Noting that she had provided a medical report concerning treatment she received on July 2013 for injuries suffered when she was assaulted by a fist she was asked why there was no mention of this incident in her statutory declaration.  She said she did not go to hospital for treatment when her husband only came around to punch or kick her.  Asked again she said she had not mentioned the incident.

    ·She confirmed her claim about an incident [in] July 2014 when her husband, his brother and his second wife came to her house and fought with her after she told him she was going to Australia.  Asked about the inconsistency between her claim that he was upset when she told him of her plan to go to Australia and the fact that he paid for the tickets and arranged the visas she said she reminded him he had paid the bride price for his second wife and asked him what he would do for her and the children.  It was put to her that this was inconsistent with information that her visitor visa was granted [in] July 2014, indicating that her husband would already have assisted her before this date.  She said he probably paid the bride price in about May 2014.  Asked why her husband would suddenly wish to help her by paying for her and the children to travel to Australia if he had abandoned them for several years she said that even though he did not care for them they still belonged to him in cultural terms.  She added that he felt guilty after paying the bride price.

    ·Asked if she had experienced incidents of domestic violence apart from those mentioned in her protection visa application she said there was constant violence.  She would go to the police station but they would only give her a telephone number to call.  Asked what her parents-in-law did during these incidents she said her father-in-law was too old to intervene.  When her husband came to the house with his brothers or cousins he would say she was his wife and he could do as he wished with her, beating her in front of their children while they were crying.  She would be covered in blood.  He would constantly abuse her verbally and spread rumours that she was having an affair with another man. 

    ·Asked about the date of the incident in which her husband came to the house with his brother and assaulted her, breaking her [body part] she said it was on the day shown in the ‘Request for medical imaging’ document, [in] February 2014, which was the day she went to hospital.  It was put to her that the hospital medical report mentioning her broken [body part] showed this date as [a date in] March 2014.  She said emergency medical treatment in Papua New Guinea is very bad.  Sometimes the [hospital section] is closed and patients are told to come back the next day. 

    ·The incident in which her husband, his brother and his second wife came to her house, injured her again and poured hot oil on her daughter occurred about two weeks after the incident in which her [body part] was broken, while [she] was still [recovering].  It was put to her that this timing did not match the dates in the medical reports showing that her daughter was admitted on [a date in] March 2014.  Later in the hearing she said she was mistaken in referring to the date of her daughter’s injury as [an earlier date in] March 2014, and that it had actually occurred on [a later date in] March 2014.  Her representative suggested that corruption and inefficiency are rife in Papua New Guinea and were responsible for the hospital’s negligence in providing erroneous dates in the reports.

    ·It was put to her that the handwriting on the two medical discharge reports said to have been prepared by two different doctors a year apart appeared very similar, suggesting that little weight should be placed on the documents.  She said she had only answered the questions put to her by her representative (later in the hearing the representative suggested that the reports may have been written by someone in a clerical position, for signature by the treating doctor)

    ·It was put to her that the police report she had submitted made no reference to her having suffered domestic violence but only mentioned she had been going through great pressure since her separation, was upset because her character was being defamed and intended to take some kind of civil action against those accusing her of having had affairs with other men.  She said she he made this complaint because she was thinking of obtaining a restraining order against her husband and his people.  Asked if she had obtained such a restraining order she said she ‘normally’ did so but when these people came to the house the police would do nothing, making excuses that they had no vehicle or fuel and telling her to sort out the problem herself.

    ·Asked how many times she had gone to the police she said she went to every police station there was in Port Moresby but only received excuses.  Asked why she would have continued to do this if they would not help she said she had no family and the only thing she could do was to go to the police to show what her husband and his relatives had done to her, thinking they would help.

    ·Asked about a visitor visa granted to her in November 2010 she said she had not travelled as she had insufficient money and needed to care for her very young child.

    ·Asked if she had considered relocating within Papua New Guinea to escape the harm she feared she said her husband believed he owned her, and he and his tribesmen would hunt her down wherever she went.  It was put to her that this did not seem consistent with his willingness to help her to go to Australia, from where she might well not return given that many Papua New Guinean women seek protection in Australia from domestic violence.  She said she lied to him by saying that she was only going to Australia for a break.  This meant he would definitely harm her if she returned to Papua New Guinea.

    ·It was put to her that her claims in her protection visa application were inconsistent with the information in her visitor visa application and her incoming passenger card indicating she had been employed as [an occupation 3] in [Employer 1] for [number] years, and that her husband was the owner of a company named [Company 1] in Port Moresby.  Following a natural justice break the representative stated that the Applicant was employed as [an occupation 3] from 2005 but was unable to work in 2008 and 2009 because of problems with her husband.  She had not mentioned this employment because she had feared it might affect her case.  The Applicant said she was not a qualified [occupation 3] but provided what amounted to [related work] at [a specific] level.

1. In a further statutory declaration dated [in] May 2015 the Applicant adds to the information she provided at the protection visa interview, in summary as follows:

   ·In her protection visa application she mentioned that her first paid employment was as [an occupation 1] in Papua New Guinea but she did not include her employment as an [occupation 3], from 2005.  She was employed on a full-time basis [in duties related to occupation 3] until the problems in her marriage began, in 2008/9.  After 2009 she worked at [that employer] only part-time, on a relieving basis.  She had dropped out of school in Year [number] and did not need any qualification to [conduct these duties].  As she was not a qualified [occupation 3] she did not mention this employment in her protection visa application.

   ·The fact that she was [an occupation 3] would not help her to relocate to some other part of Papua New Guinea to escape the harm she fears.  She has five children and it is impossible for her to take them with her.  No matter where she went in Papua New Guinea her husband and his family would find and harm her and her children.

   ·She has suffered ongoing domestic violence since 2009 when her husband began an affair.  She may have mixed up the dates of the various incidents at the interview.  She has been under great pressure in Papua New Guinea and, in Australia, she is caring for her children by herself.  She fears returning to Papua New Guinea and suffering abuse once more from her husband.  These factors are affecting her memory.

   ·In Papua New Guinea there is no proper government protection for women.  In the letter she obtained from the police they did not mention the domestic violence she suffered, despite her having told them of it.  Further, in the hospital report she provided the staff have carelessly provided incorrect dates for the incident in which her [body part] was broken.  This occurred on [a date in] February 2014.

   ·Her children were victims of domestic violence at the hands of her husband, his family and his wife [Ms A], who deliberately poured hot water and oil over her daughter [Applicant 3], burning her very badly (the Applicant provided copies of seven colour photographs annotated as showing her daughter [Applicant 3] exhibiting severe scarring to both legs.

2. The Applicant also provided a photocopy of a document said to be a request for diagnostic imaging by x-ray of her [body part], stating that she had been assaulted by her husband.  The document appears to bear two different dates – [one date in] February 2014 and [a date in] April 2014.

3. In a covering submission the representative contends, in relation to inconsistencies over dates which were evident in the Applicant’s responses at the interview, that the RRT Guidelines on Credibility Assessment are relevant in her case and should be given weight.  She also submits that the Applicant’s relationship with her husband followed a ‘classic cycle of domestic violence’ involving six distinct phases (build-up phase, stand-over phase, explosion phase, remorse phase, pursuit phase and honeymoon phase)[1] This explains why he agreed to finance her trip to Australia as, during the pursuit phase, abusers will try to buy back their partner by giving gifts and being loving and attentive.  If the victim refuses to return the violence may escalate, however, and it is in the pursuit phase that most domestic violence murders occur.

   [1]  The representative cites a publication ‘The cycle of violence’ by Micah Projects Inc, in a pamphlet issued by the Brisbane Domestic Violence Service, hearing

4. The Applicants appeared before the Tribunal on 4 November 2016 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Pidgin (Papua New Guinea – Neo Melanesian) and English languages.  The Applicant’s representative attended the hearing.

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

   ·All the information provided in her protection visa application and statutory declarations was true, as was the information she gave in her protection visa interview.  She did not wish to change anything she had claimed previously.

   ·Asked why she had left Papua New Guinea she said she experienced violence there and could not find peace.  She had feared harm from her husband and, in the absence of a strong system of law and order in Papua New Guinea, he would harm her if she returned.  Asked why he would harm her he said they were fighting over his marriage to another woman.

   ·Asked if she feared harm for any other reason she said her husband’s family and clan, or tribe, would all harm her.  Anything could happen and they might try to kill her.  She went on to say she had been engaged in conflict with the woman he married, identified by her as [Ms A].  Asked if she meant she had fought [Ms A] she agreed they had fought many times before she came to Australia.  Asked if this occurred when she went to find and attack [Ms A] she agreed this was the case and that she had used her family and tribe to help her do so, surrounding [Ms A’s] car and attacking her.  This had occurred many times.  Sometimes if she saw [Ms A] when she was on her own she would attack her but if she saw her in a crowd she would move away. 

   ·Asked if she had been able to harm [Ms A] in these attacks she said she would do so when she was really angry but [Ms A] would run away.  Asked if she had ever been able to catch her and harm her she said they had fought in her house.  On one occasion [Ms A] came by car to the place where she was staying, together with men from her husband’s tribe.  She had wanted to fight [Ms A] and was helped to do so by her daughter [Applicant 6].  Asked if anyone was injured in this fight she said [Applicant 6] suffered a swollen face and all her children saw the situation she was going through.  Asked again if [Ms A] was ever injured by her or her friends she said they tore her blouse but her husband’s tribe fought with her.

   ·Asked if she feared harm in Papua New Guinea from anyone else she said the law and order situation is bad and it is not safe to live there.  Beyond this she was really frightened of her husband, his second wife and his tribe.

   ·She confirmed the accuracy of a summary I provided of the claims set out in her protection visa application and statutory declarations.  Regarding her claim to have lived in the house of her parents-in-law from [year] up to the time of her departure for Australia in July 2014 I put to her this cannot have been true given her claim that her husband kicked her out of the house.  She said he continuously threw her out of the house when he was living with his second wife.  I put to her he could not have done so if she continued to live in the house.  She said he was her property as he had paid the bride price and he could do whatever he wanted with her.  Asked if she meant she had stayed in the house all the time she said he would come to the house and tell her to leave but she would not do so as there was nowhere to go.

   ·Asked who was living in the house with her and the children she said she stayed with all his relatives.

   ·Asked where her husband is now living she said he is in a flat in a suburb of Port Moresby with his new wife but she did not exactly know where this was located as she had left him.  She did not know if he is still working and said she did not wish to know.  Asked when it was that she last spoke to him she said it was when he was going to pay the bride price for his second wife and she asked him to obtain Australian visitor visas for her and the children.

   ·Regarding her claim to have worked as [an occupation 1] earning [amount] kina a month I noted that, as discussed with her at the protection visa interview, there was evidence she had worked as [an occupation 3], including in the birth certificates for her children, her visitor visa application and her passenger arrival card.  She had also confirmed in her interview that she worked full time as [an occupation 3] from 2005 to 2009 and then part-time.  I put to her the information could indicate she was [an occupation 3] at [Employer 1] up to the time she left for Australia and that she had deliberately hidden this information when she completed her protection visa application, claiming she was only [an occupation 1] to make it appear she was at risk of harm in Papua New Guinea.  She said it was true that she was [an occupation 3] but she was not qualified, having dropped out after [school level], and she worked as an assistant [occupation 3].  This was why she had not mentioned her employment, and she had not intended to mislead.  She confirmed that she was paid for this work.  I put to her it was hard to understand why she would not have mentioned it.  She said she was suffering from [a condition] and was not aware of these things when she came to Australia.

   ·Asked why she obtained her passport, in December 2009, she said the system in Papua New Guinea has changed and one has to produce identification to obtain a driving licence or to go into a hotel.  I put to her it seemed hard to believe a passport would be needed for these purposes.  She said she had also thought that if things were going well she would use the passport to travel.  I noted that together with her passport she obtained an Australia visa in November 2010, indicating she had a specific plan to travel to Australia.  She said she had not travelled because at the time she was pregnant with her [child].  Asked why, in this case, she would have applied for the visa she said she was very happy to travel but then her husband began fighting with her and her troubles came up, preventing her from going.  I reminded her of her claim that the trouble with her husband began in 2009, a year before she obtained the visa.  She said she was happy when she got the passport but then her troubles came.  Asked again why she would have obtained a visa in 2010 she said she got the passport early and was thinking of coming to Australia when the issue of the other woman came up.  Asked if she had intended simply to visit Australia or to escape from her husband she said she was hoping never to come back but she had to stay in Papua New Guinea for her children.

   ·Asked about the assistance her husband gave her to travel to Australia she said she tricked him.  He was paying a big bride price for his second wife and she wanted to go to Australia with the children and never return.  She confirmed that he arranged for visas and paid for the airfare for her and her children as he felt guilty for paying the bride price.  Asked if he gave her cash to spend in Australia she said he did not.  Asked where the money came from to support her and the children in Australia she said she had sold her small car.

   ·Noting her claim that her husband had abandoned his family and was very violent towards her I asked why he would feel guilty.  She said she had all the children and he felt very guilty as it was very unfair.  He had paid a big bride price and had been violent towards her and felt guilty, so she tricked him by not returning.  To the suggestion that if he hated her so much he would probably prefer that she did not return she said only that she felt at peace in Australia.

   ·I noted that in her statutory declaration she had mentioned a violent incident which occurred on [a date in] March 2014 in which her husband’s second wife came to house to fight her, injuring her [body part] again and then burning her daughter with hot oil and water, injuries which required a month’s hospitalization.  Asked why the certificate she had provided from [the named] Hospital gave a different date, showing that her daughter was admitted on [a date in] March 2014, she blamed negligence on the part of the treating doctors.  I noted that the medical report referred only to burns on her daughter’s left leg while the photographs she had submitted appeared to show that both legs were burned.  She said the burns were to her left leg and required a skin graft from her right leg.

   ·Regarding the incident [in] July 2014, [number] days before she left Australia, when her husband, his second wife and his brother came to the house and fought with her when she revealed that she was going to Australia I asked why this would cause a fight if her husband was already helping her to travel.  She said they were angry with her, and she did not know the reason.  I noted that in her statutory declaration she claimed the fight occurred because she told them she was taking the children to Australia.  She said there was continuous fighting and she did not have a peaceful life – she had said these things so she could come to Australia.  Asked if she meant this was not the reason for the fight she said they were looking for a fight and her life was continuously fighting.

   ·Noting her claim that in this incident her brother-in-law pulled her under a fence, injuring her [different body part] so that she had to go hospital, I asked how it had been possible for her to fly to Australia five days later.  She said her [body part] was injured and she was rushed to the hospital for treatment.  She was checked and given medication.

   ·Regarding her claim to have reported the harm to the police on a number of occasions I noted that the letter from [Police Station 1] recorded that while she had complained over defamatory comments made about her by her husband’s relatives who were falsely accusing her of having affairs with other men it made no reference to her having suffered domestic violence.  I asked why, if the police had gone to the trouble of writing a letter about her complaint over defamation, they would not have mentioned the violence she claimed to have suffered.  She said the violence was continuous and she would try to report it to the police.  They are too slow and if an incident occurs they never arrive in time.  Asked again she said she had thought that the violence was included – it had all been given to a police officer to write.

   ·I suggested that the evidence she had given could indicate that she had been the aggressor in the conflicts with her husband’s new wife, organizing her friends to attack this person for taking her husband from her; even if she and her family had sometimes suffered harm, this was as a result of fighting she herself had begun.  I noted the relevant point was not who was, or was not, to blame for these conflicts but rather that she could avoid harm to herself and her children in Papua New Guinea simply by leaving her husband and his second wife alone.  She said that whatever happened, her husband’s second wife would still come to fight her. 

6. The Tribunal heard evidence from the Applicant’s four older children.

   ·[Applicant 4] stated that he and his siblings had witnessed what his mother had gone through.  He did not believe children of his age should experience such problems.  Asked if he had ever been harmed by his father he said that when his father was angry he would fight with the family.  He did not treat them well and hit them.  Asked when he had last spoken to his father he said his elder brother had spoken to him by telephone about a month previously. 

   ·[Applicant 5] stated it was true that his mother had gone through a lot in Papua New Guinea – everything she said was true and he himself had seen it.  He had seen her bleeding and covering her injuries with lap laps.  He had gone to hospital with his sister after she was burned by oil being poured over her.  His father abused him and fought with him when he went to protect his mother, from the time he was a small child.  He still had nightmares as a result.  Asked if he had been receiving any counselling or other treatment in Australia because of his nightmares he said there was no help available in Papua New Guinea but there were counsellors in his school in Australia who could help him.  He had not, however, received any such counselling.  Asked when his last telephone conversation with his father occurred he said two months previously a cousin or neighbour told him his father wanted to speak to him.  He provided the telephone number and his father called him.  The first thing his father asked was whether his mother was alright.  He said she had made a big mistake by bringing the family to Australia and he sounded very angry about it, saying she was not a good person.  He ([Applicant 5]) did not like this and put down the phone.  His father did not send money to him or to anyone else in the family.

   ·[Applicant 3] stated she remembered that when she was small people came and put hot water on her.  As she was small it was hard to remember.  She was in pain, and was in hospital for a long time.  Asked if any particular person did this to her she said it was her stepmother, whose name was [Ms A].  Asked if she had met or spoken to [Ms A] very much she said she had not.  Asked when it was that she last spoke to her father she said she had not done so, although her brother [Applicant 5] spoke to him on the telephone.  Asked if [Applicant 5] told her about his discussions with his father she said he did not.

   ·[Applicant 6] stated that she had also been a victim because she had stood up for her mother in the house.  On one occasion her father and his second wife and relatives came to the house, kicked her in the head and pushed her away.  Asked if she had spoken to her father recently she said he had not.  Her brother [Applicant 5] spoke to him but had not told her about what was said.

7. The representative submitted, in summary, that

   ·The Applicant was suffering from a number of misunderstandings about her case as, for example, stating earlier in the hearing that she had prepared her protection visa application and statutory declarations by herself without assistance.  She exhibited a lack of focus and was undergoing counselling for [her condition]. 

   ·The Applicant lived with her in-laws for seventeen years despite suffering ongoing domestic violence.  Her husband asked her to leave the house but she had nowhere to go and she had to remain, continuing to experience the violence.

   ·The long history of domestic violence may have affected the Applicant’s memory and could be the reason why she could not clearly or consistently explain her occupation in various documents to the Department.  In her most recent statutory declaration she had done her best to clarify why she had not previously mentioned her occupation as [an occupation 3], arising from the fact that she had no qualifications or documents.

   Post hearing submission

8. On 23 November 2016 the Tribunal received a submission from the representative further addressing a number of issues which were discussed with the Applicant at the hearing.  She submits, in summary:

   ·Regarding the issue of the Applicant’s violence against her husband’s second wife the Tribunal should consider the context and the Applicant’s circumstances.  Her husband was the primary perpetrator of domestic violence.  It was natural for her to be upset with him when he began an affair with the woman who subsequently became his second wife, at a time when she was pregnant with their fifth child.  She provided no evidence that the second wife was injured by her and her friends and stated she was able to run away.  Even if she had some support from friends in the past this does not mean she would be able to count on them in future to protect her or her children.  The witness evidence of her children corroborates her claims that the violence she and they suffered from her husband and his relatives was severe.  As she was not the primary or sole perpetrator, modifying her behaviour on return would not prevent her and her children suffering domestic violence on return.

   ·The legal authorities and the AAT credibility assessment guidelines indicate that vagueness and inconsistencies, such as those the Tribunal noted in the Applicant’s evidence regarding dates of incidents of domestic violence, should not, in themselves, cause the Tribunal to make an adverse finding as to her credibility.  Further, she has been assessed as exhibiting symptoms consistent with the diagnostic criteria for [multiple specified conditions] - factors which affect her ability to provide fully accurate information.  Finally, country information regarding the decline of public services and the prevalence of corruption in Papua New Guinea support the Applicant’s explanation that discrepancies in dates on documents may be due to negligence by the officials concerned.

   ·Her failure to travel to Australia when she was first granted a visitor visa in 2010 is explained by the fact that she was pregnant with her youngest child.  Travel to Australia is very expensive and it took another four years before she had an opportunity to escape.  Her husband’s willingness to finance her travel to Australia in 2014 is explained by the cycle of domestic violence in which, during the ‘pursuit’ or ‘buy back’ phase the perpetrator will try to buy back their partner with gifts and by being loving and attentive.

   ·The Applicant’s claim for protection as a member of the particular social group consisting of ‘women in Papua New Guinea’ is supported by country information, cited in previous submissions, about the prevalence of domestic violence and sexual abuse.  She has had a long history of abuse from her husband and his relatives and the fact that he contacted her son [Applicant 5] in Australia as soon as he had an opportunity to do so indicates there is a real chance he will contact her and her children to persecute them if they return.

   ·Relocation in Papua New Guinea is neither reasonable nor practical in the Applicant’s case given that she is suffering from [multiple specified conditions] and is a single woman with five children.  Given the prevalence of sexual abuse, she and her [number] daughters would be at greater risk of persecution if they were to relocate.

1. The Tribunal also received:

   ·A supporting letter from [Welfare Agency 1], dated [in] November 2016.  The writer, a support worker, states that since [August] 2014 the Applicant and her children have been in a Commonwealth-State funded program supporting people who are experiencing, or are at risk of, homelessness.  They initially resided in a hostel but later moved into a property owned by the organization where they are awaiting the outcome of their visa application.  The children are variously in school or are employed. 

   ·A psychological assessment of the Applicant, dated [in] November 2016.  She reported a history of domestic violence in Papua New Guinea and a range of physical and mental disorders.  Based on this self-reporting she was assessed as experiencing symptoms consistent with [multiple specified conditions].  Her symptoms are said to be consistent with the diagnostic criteria for [a condition].

   Community information

2. Following the receipt of community information the Tribunal wrote to the Applicant in the following substantive terms.

   In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that the Tribunal has not made up its mind about the information.

   The particulars of the information, which was received following the Tribunal hearing on 4 November 2016, and its relevance are as follows:

   a)You and your husband [named] are a business couple who own [number] properties in Port Moresby ([in specified locations])  Your husband has given [all] of these properties to you and your children.  You sold one property and [number] are currently being rented, with the rent money being paid in an account jointly held by you and [Applicant 5] in Port Moresby.  Your husband is also planning to buy another property for you and your children in [a location] later this year.

   This information is important and relevant for the Tribunal’s review in your case because it can cast doubt on the truth of your claims that your marital relationship with your husband broke down when he married another woman in 2009; that you and your husband were or are on bad terms with each other; that your husband, his second wife and family members were violent toward you; or that after 2009 you were forced to become the breadwinner for yourself and your children, working as [an occupation 1] in Port Moresby and making [amount] kina per month.

   b)Your husband sent you and your children to Australia in order to please you, after he married a second wife, and so that the Australian government could care for you while he was looking after the family properties in Port Moresby.  He paid for all the arrangements for your travel, from reports by doctors to your visas and tickets.  He still sends you and your children money through an account held in the name of another person.  In December 2016 he sent you K[amount] and he bought a car for you and new [appliances] for each of your children.  He regularly visits you and your children, using a different passport.  He visited you last in January 2017 and he is to make another visit [in] February 2017.

   This information is important and relevant for the Tribunal’s review in your case because it may cast doubt on the truth of your claims that your marital relationship with your husband has broken down; that you and your husband are on bad terms with each other; that you have suffered violence from your husband, his second wife and members of his family; or that you fear harm from your husband, his second wife and members of his family.  It can also cast doubt on the truth of your evidence at the Tribunal hearing that the last time you spoke to your husband was when he was making the arrangements for you and your children to travel to Australia in July 2014.

   c) Your husband [named] bribed doctors and police in Papua New Guinea to prepare false reports concerning domestic violence, in order to obtain protection visas for you. 

   This information is important and relevant for the Tribunal’s review in your case because it may lead the Tribunal to conclude that no weight can be placed on the documents you have provided which are said to be medical reports and photographs of injuries caused to you by your husband and to your daughter [Applicant 3] by your husband’s second wife, or the document which is said to be a police report regarding a complaint you made that you had been falsely accused of having extramarital affairs.

   All this information is important and relevant for the Tribunal’s review in your case because, if relied on, it would lead the Tribunal to conclude there is not a real chance that you or your children would suffer harm from your husband, his second wife or his relatives if you were to return to Papua New Guinea.  This would lead the Tribunal to conclude that you and your children do not have a well-founded fear of persecution for this reason and you are not refugees on this ground.  It would also lead the Tribunal to conclude that there are no substantial grounds to believe there is a real risk you or your children would suffer significant harm for this reason if you were returned to Papua New Guinea and so you would not engage Australia’s complementary protection provisions.  This would be a reason for the Tribunal to conclude that the decision to refuse to grant you and your children protection visas should be affirmed.

   You are invited to give comments on or respond to the above information in writing.

3. On 15 March 2017 the Tribunal received a response in the form of a statutory declaration signed by the Applicant on that day.  In it she denies all the allegations made against her.  She states that although her husband is a regular traveller, for business and personal reasons, she does not know how many times he has visited [Australia] or whether he used his own or different passports.  She knows of two visits by him to [Australia], the first of which occurred in September 2016 when he attended a [sport event] and met their son [Applicant 5].  He saw [Applicant 5] for a second time together with the other children for a few hours in [a city location] in mid-January 2017.  [Applicant 5] did not inform her of the earlier meeting until he asked permission for all the children to meet their father on the second occasion and she was not aware of it at the time of the Tribunal hearing.  [Applicant 5] did not tell her about it previously because he was scared and nervous.  She ascribes the allegations to malice from her husband or others in the Papua New Guinea community who are jealous of her.

4. Together with the Applicant’s statutory declaration the Tribunal received:

   ·A statutory declaration signed by [Applicant 5] explaining the circumstances of his meetings with his father in [Australia].  The first meeting took place at a [sport event] where they met after his father texted him.  His father was emotional, crying a lot, and they did not speak much.  On the second occasion, in mid-January 2017, he and his siblings met their father in [the city location].  His father was again emotional and tearful and although they walked together for some time he did not speak much.  At the hearing he was very nervous and said only that he had communicated with his father.  He did not think to mention that they had met at the [sport event] because he was not asked if he had seen him.  He does not believe his father is providing the family with money as they are struggling financially.

   ·A receipt indicating that the Applicant purchased a secondhand unregistered vehicle for $[amount] in August 2016.

   ·A letter on the letterhead of [Sport Group 1], dated [in] November 2016 inviting [Applicant 4] to join [their] Development Program for 2017.

   ·A further supporting letter from [Welfare Agency 1], dated [in] March 2017.  The writer states that the Applicant and her family have received weekly visits from the organization since they entered the housing support program in 2014.  The writer has been closely involved with them since February 2016 and in that time has not witnessed [her husband] at the property.  She has observed no vehicle at the property apart from the car purchased by the Applicant in August 2016 and no new [appliances].  The family is in some financial difficulty and is receiving budget support.  They are slightly in arrears in rental payments.

   FINDINGS AND REASONS

5. On the basis of their passports which they submitted at the hearing I accept that the Applicants are citizens of Papua New Guinea and that their identities are as the claim them to be.

6. The Applicant claims to fear serious harm in Papua New Guinea, at the hands of her husband, his second wife and his relatives, for the Convention reason of her membership of the particular social groups consisting of ‘women in Papua New Guinea,’ married women in Papua New Guinea,’ ‘married women in Papua New Guinea for whom a bride price has been paid,’ and ‘women subjected to domestic violence in Papua New Guinea.’  I note that in the most recent submission from her representative only the first of these putative groups is mentioned but I accept this does not indicate that the Applicant has dropped her claim in regard to the other groups which have been proposed.

7. Having considered the information before the Tribunal, including country information cited in the delegate’s decision and the representative’s submissions, I am not satisfied the proposed construction ‘women in Papua New Guinea’ can reasonably be said to exist as a particular social group.  I accept it may be possible to discern an entity of this nature in some instances – particularly in countries which are mono-lingual and which have a religion and cultural pattern shared by most citizens - but this should not lead to an assumption that broad-based constructs at this high level of generality, including as much as half the population, exist in all, or even most, societies.  In the case of Papua New Guinea I note that the particular social group proposed would necessarily embrace very great divergences - including those between tribes, clans, languages[2], religions, economic circumstances, educational background, age and marital status – on a scale which, I am satisfied, would preclude any meaningful characteristics or attributes being shared among its putative members, beyond the experience of discrimination and violence – circumstances which cannot found a particular social group – and the obvious and wholly uninformative fact of gender.  I also note the proposed construction ‘women in Papua New Guinea subjected to domestic violence’ cannot be a particular social group since it depends for its existence on the harm which is feared.  I accept that the other proposed groups can be said to exist in Papua New Guinea as particular social groups, in the sense that they are sufficiently identifiable by characteristics or attributes common to all their members, other than a shared fear of harm which distinguish them from society at large.  I also accept that the Applicant can be said to be a member of these particular social groups and that a further relevant group to which she could reasonably be seen as belonging could be defined as ‘women in Papua New Guinea who have left an abusive domestic relationship.’ 

   [2] In this context I note that Papua New Guinea is the world’s most linguistically diverse nation, with some 800 living languages: ‘Papua New Guinea Language Resources,’ Summer Institute of Linguistics website, >

   The evidence before the Tribunal concerning the Applicant’s experiences in Papua New Guinea is unsatisfactory in a number of respects. 

8. First, in her evidence at the hearing the Applicant was able to shed little or no light on a number of discrepancies evident in her claims about various incidents of harm she and her children are said to have suffered and she appeared generally unwilling or unable to focus on these matters when they were brought to her attention for comment. 

   ·Beyond suggesting negligence by doctors or other staff she was unable to provide an explanation for the fact that the ‘Request for diagnostic imaging’ form she submitted appears to show that the incident in which her [body part] was broken occurred on [a date in] February 2014, in obvious conflict with the [hospital section] report which indicates that it occurred on [a date in] March 2014.

   ·Her responses did not clarify the inconsistency between her claim at the protection visa interview that there was a two-week gap between the incidents in which her [body part] was broken and the incident, on [a date in] March 2014, in which her daughter was burned with hot oil and water, given that the [section] report she submitted indicates she suffered the broken [body part] on [a date in] March 2014.

   ·When she was asked why there was no reference in her statutory declaration to an incident corresponding with the injuries described in a further [hospital section] report on [a date in] March 2013 she said only that there had been many such incidents. 

   ·She could not explain satisfactorily why the police report she provided makes no mention of her having suffered any domestic violence and states only that she was concerned over false allegations of adultery and was planning to take some form of legal action for defamation.  As put to her, it is difficult to understand why the police would go to the trouble of recording a matter involving civil litigation (and thus of little direct relevance for them) while ignoring a history of complaints of domestic violence.

   ·She offered varying and, in my view, unconvincing explanations for her failure to declare that she had a lengthy employment as [an occupation 3] right up to the time that she left Papua New Guinea for Australia in July 2014.  I note that this casts particular doubt on the information in her protection visa application indicating that her only employment was as [an occupation 1]. 

   ·She provided shifting and unsatisfactory explanations for her decision to obtain a passport in 2009 and an Australian visitor visa in 2010. 

9. Second, it seems generally implausible that if the Applicant had been abandoned by her husband and subjected to continuing violence by him over a period of some five years she and her children would nevertheless be able to continue living throughout this period with his parents-in-law and other members of his family, just the people who she claims helped to harm her.  When she was asked at the hearing about the claim in her statutory declaration that he told her to get out of the house she said only that she had been unable to leave as there was nowhere else she and her children could go.  Had his attitude to her been as abusive and violent as she claims, however, it is difficult to believe this consideration would have prevented him from evicting her from his parents’ home.

10. Third, I accept that the necessarily charged circumstances in which her husband left her and their children in 2009 and took up residence elsewhere with his girlfriend might have exposed her to domestic violence from him.  It is less easy to understand why, if he had genuinely abandoned them, he or his relatives would be concerned enough to go out of their way to attack her repeatedly over a number of years or why he would remain concerned as to what relationships she formed.

11. Fourth, the history of violent abuse from her husband which she describes seems generally inconsistent with the fact that he assisted her in travelling to Australia with their five children, arranging their visas and providing at least part of the costs of their airfares.  I note her claim that she deceived him into believing that she intended returning after a brief visit but, as put to her, it seems hard to believe he would not have suspected that she intended to remain permanently in Australia if he had abused her repeatedly over a period of five years.  I note her explanation that she was able to take advantage of the fact that he had just paid (or was about to pay) a large bride price for his second wife and felt guilty about abandoning her and I have also had regard to the representative’s references to a cycle of domestic violence in which gift-giving may feature.

12. Fifth, while I accept that the most carefully prepared protection application is unlikely to offer a full description of an applicant’s circumstances and experiences, in the case of the present Applicant I consider there are significant aspects of her previous life in Papua New Guinea which have not been revealed to the Department or to the Tribunal and which may well be important in assessing whether she would be at risk of future harm.  In this context I note that at the hearing she divulged, for the first time and with little apparent understanding of the potential significance of the information, that she had been the aggressor on a number of occasions when she and her friends pursued her husband’s second wife and surrounded her car in an attempt to harm her.  It may well be, as the representative submits, that her intended victim was able to escape these assaults without harm but I consider that this part of her evidence is at odds with the picture of herself she has presented elsewhere of an innocent injured party wholly vulnerable to severe domestic violence from her husband and his relatives.  While I have not given any particular weight to the community information received by the Tribunal following the hearing, in part because of the evidence from [Welfare Agency 1] countering the claim that [her husband] is providing the Applicant’s family with financial and other support, I nevertheless note that the information provides a relatively detailed allegation of extensive joint property holdings by [her husband] and the Applicant in Port Moresby which, if it had any substance, would be sufficient to refute her claims about the nature of her marital relationship.

13. Taking these considerations together, and acknowledging the information before the Tribunal regarding psychological difficulties the Applicant has experienced since her arrival in Australia and the impact these may have had on her ability to provide information, I have concluded that she has fabricated or exaggerated aspects of her claims in order to strengthen her case for protection and that she has not told the whole truth about the nature of her marriage or her circumstances in Papua New Guinea.  I regard the allegations made in the community information about her property dealings with her husband to be of significant potential concern although, as it is not practical for the Tribunal to attempt to confirm them, I have been unable to give these allegations any weight. 

14. Despite these concerns I am prepared to accept core aspects of the Applicant’s account, as follows:

    ·She was married to [her husband], [an occupation 2], in [year] and they had five children together.

    ·Their marriage was successful until, in 2009, she discovered that her husband was having an affair.  She confronted the other woman in a violent incident and in a number of other incidents tried to attack her with the help of her friends.

    ·Her husband moved out of his parents’ home where they had been living and moved into rented accommodation with his girlfriend.  The Applicant and their children remained in the house and she continued to work as [an occupation 3] [at Employer 1].

    ·Her daughter [Applicant 3] suffered burn injuries to her left leg in March 2014 and was treated in [the named hospital] for a month.

    ·She and her children came to Australia in July 2014 with the help of her husband who, at the time, was paying another bride price for his second wife.  He arranged their visas and paid for their airfares and he has subsequently visited his children in [Australia].

1. In considering the Applicant’s further claim to have suffered domestic violence from her husband and his relatives I note that although there have been variations in the details, the central elements of the claim have remained relatively constant since the time of her protection visa application.  I also note that her children provided some limited corroboration for the claim in their witness evidence at the hearing and that her psychological report notes she is suffering [several specified conditions] which are not inconsistent with the history of abuse she claims.  Finally, I accept that her claims are generally consistent with country information available to the Tribunal regarding domestic violence in Papua New Guinea.  Among this information is a comprehensive and recent report prepared by Medecins Sans Frontières[3] which states, in part:

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

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

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

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

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

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

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

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

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

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

   
   

   ….

   
   

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   Village courts tended to impose jail terms on women found guilty of adultery while penalizing men lightly or not at all. The law requires district courts to endorse orders for imprisonment before imposing sentences, and National Court justices frequently annulled such village court sentences. Polygyny and the custom in many tribal cultures of paying a “bride price” tended to reinforce a view of women as property. In addition to being purchased as brides, women sometimes were given as compensation to settle disputes between clans, although the courts have ruled that such settlements denied women their constitutional rights.[4]

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

3. Other reporting[5] supports a conclusion that rates of domestic violence are very high in Papua New Guinea, with as many as 70 per cent of women experiencing family or sexual violence at least once in their lifetime.  While there have been some recent measures to improve the responses of the police and the judicial system to these problems, effective state protection is largely absent.  There is evidence of unwillingness on the part of the police, particularly in rural areas but also to some extent in Port Moresby and other major population centres, to regard domestic violence against women as a suitable matter for official action and a tendency to dismiss complaints or abet the offender.  The judicial system, in particular at village level, has demonstrated a general inability or unwillingness to penalize the few offenders who are charged and brought before the courts.

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

4. Taking all this information together I am prepared to give the Applicant the benefit of the doubt by accepting that she may have been exposed to a degree of violence at the hands of her husband and his relatives at some point after he left her in 2009.  Although I am not satisfied that any particular weight can be placed on the documents she has submitted regarding her medical treatment I am also prepared to accept that she may have suffered injuries in the course of one or more assaults, extending over a period of some years, and that it is possible her daughter suffered a serious burn injury as a result of one such incident.

5. Given this finding I accept there is a small but nevertheless real chance that if the Applicant were to return to Papua New Guinea she would again suffer serious harm from her husband and his relatives.  His motivation in doing so would not arise above the purely personal, prompted by his anger at her having left him by failing to return to Papua New Guinea and, possibly, by jealousy at what he may imagine to be her relationships with other men and I am not satisfied that he would act against her because he would perceive her to be a member of a particular social group.  Nevertheless, I have considered whether a nexus with a Convention reason may be found in the failure of the Papua New Guinea authorities to protect her from him. 

6. I accept that Papua New Guinea is a party to international human rights instruments including the Convention on the Elimination of All Forms of Discrimination Against Women and has provisions in its Constitution and domestic law guaranteeing equality and providing sanctions against domestic violence. I also accept that there have been recent improvements in the way in which the police and the judicial system approach questions of violence toward women. The Applicant nevertheless claims to have been unsuccessful in her attempts to gain protection from the police after various incidents of domestic violence although she has been able to obtain a statement from them regarding her complaints of defamation. The country information suggests that failure by the police to act on complaints of domestic violence is partly due to factors such as under-resourcing and lack of training but that the police at times adopt the attitude that abuse, including violent abuse, is a domestic matter in which they do not have a role to play and women, particularly those who have left abusive relationships, are to some degree less deserving of protection. On this basis I am prepared to accept that the Applicant would be denied protection from the harm she fears because of her membership of the particular social group ‘women in Papua New Guinea who have left an abusive domestic relationship.’

7. I have also considered whether the Applicant might be able to avoid the persecutory harm she fears by relocating to some other part of Papua New Guinea.  While I have some doubt that her husband would have any ability to find and harm her if she were to move to some other population centre away from Port Moresby I accept that she is suffering from some psychological difficulties and that if she were to be returned she would have with her five children including [number] daughters.  I note that the country information indicates that women living outside the protection of their family or relatives are at risk of violence including sexual violence in Papua New Guinea.  I also accept that for a range of reasons it may not be possible now for her to return to her family [village], Western Highlands.  Taking these considerations together I am not satisfied that, in her particular circumstances, the Applicant could escape serious harm by relocating away from Port Moresby.

   CONCLUSION

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

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

   Second-, third- fourth-, fifth- and sixth-named Applicants

10. On the information before the Tribunal I am satisfied that the second-, third- fourth-, fifth and sixth-named Applicants are members of the same family unit as the first-named Applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first-named Applicant’s application. As the first-named Applicant satisfies the criterion set out in s.36(2)(a), it follows that the other Applicants will be entitled to protection visas.

    DECISION

11. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first-named Applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other Applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named Applicant.

    Andrew Mullin
    Member