1515019 (Refugee)

[2019] AATA 6865

1515019 (Refugee) [2019] AATA 6865 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515019, 1904385

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Tigiilagi Eteuati

DATE:21 November 2019

PLACE OF DECISION:  Brisbane

DECISION:

·The Tribunal remits Applicant 1’s matter for reconsideration with the direction that Applicant 1 satisfies s.36(2)(a) of the Migration Act.

·The Tribunal remits Applicant 2’s matter for reconsideration with the direction that Applicant 2 will satisfy s.36(2)(b) of the Migration Act if Applicant 1 is granted a Protection visa.

·The Tribunal remits Applicant 3’s matter for reconsideration with the direction that Applicant 3 satisfies s.36(2)(a) of the Migration Act.

Statement made on 21 November 2019 at 8:58pm

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – particular social group – women in Papua New Guinea – gender based violence – ex-husband physically violent – husband would not provide financial assistance – near abduction of daughter – attempted abduction of children at school – Applicant 1 now re-married – document fraud in PNG – inconsistencies of evidence – child hurt protecting mother – dire situation for women – prevalence of gender-based violence – Applicant 2 is a dependant – decision under review remitted   

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 decisions 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 claim to be citizens of Papua New Guinea. Applicant 1 applied for a Protection visa on 17 April 2014. Applicant 2 arrived in Australia [in] July 2015 and applied for a Protection visa on 22 July 2015 as a member of Applicant 1’s family unit. On 21 October 2015 the delegate refused the applications.

3. Applicant 3 arrived in Australia [in] April 2016 and applied for a Protection visa on 8 July 2016.

4. The Applicants appeared before the Tribunal on 14 September 2016 for a hearing in relation to review of the decisions refusing the applications of Applicants 1 and 2. At that time, the Applicant’s representative indicated that Applicant 3 had made a Protection visa application which had yet to be determined and asked the Tribunal to hold off on making a decision in relation to Applicant’s 1 and 2 until after the determination of Applicant 3’s Protection visa application. This request was made on the basis of the Applicant’s representative’s understanding that if the Tribunal made a decision in relation to Applicants 1 and 2 before Applicant 3’s application had been determined, this may eliminate the possibility of Applicant’s 1 and 2 meeting the criteria in section 36(2)(b) of the Act as members of the family unit of Applicant 3.

5. On 20 February 2019, Applicant 3’s Protection visa application was refused. She applied for review with the Tribunal on 26 February 2019.

6. The Tribunal held a joint hearing for all three Applicants on 29 July 2019 where all three Applicants gave evidence. The Tribunal also received oral evidence from Applicant 1’s Australian husband. The Tribunal hearings were conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.

7. The Applicants were represented in relation to the review by their registered migration agents. The representatives attended the Tribunal hearings.

RELEVANT LAW FOR APPLICANT 1

1. The applicable criteria for the grant of a Protection visa depend upon the date on which the application for the visa is made.

2. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (SLI 2014, No. 135) amended s.36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’. ‘Refugee’ is defined in s.5H, with related definitions and qualifications in ss.5(1) and 5J-5LA. These amendments commenced on 18 April 2015 and apply to Protection visa applications made on or after 16 December 2014

3. As Applicant 1 applied for a Protection visa before 16 December 2014 her application must be decided by reference to the pre-16 December 2014 provisions as set out below. The post-16 December 2014 provisions apply to Applicant 3 and are discussed further below. 

4. The pre-16 December 2014 criteria for a Protection visa were 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.

Refugee criterion

1. 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).

2. 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.

3. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

6. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

7. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

8. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

9. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

10. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. 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’).

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

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the Applicant 2 relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

1. 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.

Member of the same family unit

1. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a person’s child.

   RELEVANT LAW FOR APPLICANT 3

2. The criteria for a Protection visa application made post-16 December 2014 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, he or she 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.

3. 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 because the person is a refugee.

4. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

5. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

6. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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

8. Applicant 1 is a [age]-year-old woman from Papua New Guinea (PNG). Essentially she claims that she has been the victim of domestic violence in PNG at the hands of her ex-husband. She claims that she has a well-founded fear of persecution in PNG as there is a real chance that she will suffer serious harm if she were to return there on the basis of her membership of the particular social group of women in PNG.

9. Applicant 1 has two dependent children. First, [Applicant 2], born on [date] claims to meet the criteria for the grant of a Protection visa in section 36(2)(b) of the Act as being a member of the same family unit as Applicant 1. Applicant 2 has also made his own claims to fear persecution on the basis that he would be harmed by others when he tries to protect his mother and sister in PNG.

10. Applicant 3 is the daughter of Applicant 1 and the sister of Applicant 2. She was born on [date]. Applicant 3 claims that she was seriously harmed by her father during an attack by her father on her mother in around 2010. Applicant 3 also claims that after her mother left her in PNG with family friends, those friends tried to coerce her into marrying or having sexual intercourse with a man named [Mr A]. She also claimed that she was the victim of a failed abduction attempt orchestrated by [Mr A]. She claims that she has a well-founded fear of persecution in PNG as there is a real chance that she will suffer serious harm if she were to return there on the basis of her membership of the particular social group of women in PNG or a young women in PNG who have transgressed culturally enforced gender roles.

Applicant 1

1. Applicant 1 indicated that she met her ex-husband in 1994 and that they were married in 1995. She explained that she met him through a cousin who was married into her ex-husband’s family. She said that her ex-husband had an aunt who lived near her and that she would see her ex-husband when he passed by her family’s shop. She said they would chat and share stories and he eventually told her that he loved her. She said that they were married in 1995. Applicant 1 said that it was not a formal Christian marriage or a large cultural marriage. She said that her ex-husband’s family did not pay her family a bride price. She said that instead, in her culture, when a man and a woman enter into a relationship, live with each other and have sexual relations, they are considered to be married.

2. Applicant 1 said that their son, [(Applicant 2)], was born in [year]. She said that her [daughter] (Applicant 3) was born in [year]. She said that she and her ex-husband separated in late 1999 when she was pregnant with [Applicant 3]. She said that leading up to the separation they were constantly arguing and fighting and that her ex-husband was physically violent towards her. She said that in late 1999 or early 2000 she sought financial assistance from her ex-husband, but he was living with another woman at that point and they chased her away.

3. Applicant 1 claimed that she saw her ex-husband in 2010 in a shopping area in Port Moresby. She said that she demanded that he provide some financial assistance to help support their two children. She said that her ex-husband said that he would not provide any financial assistance for the children. She said that she threatened that she would bring legal action against her ex-husband in order to compel him to provide financial support for their two children. Applicant 1 indicated that an argument ensued which resulted in her ex-husband physically beating her. She said that her young daughter who was around [age] at the time intervened and that her ex-husband hit the child in the leg with a stick causing the child a grievous injury.

1. Applicant 1 indicated that after this incident she went to the police to report the assaults but they took no action. She said that she had approached a lawyer to enquire about taking action against her husband to compel him to provide financial assistance for the children. She also indicated that she went to a village council to try to have them convince or order her ex-husband to provide financial assistance for the children. She said that her ex-husband was able to avoid detection by the council.

2. Applicant 1 indicated that in 2011 her ex-husband attended their children’s school and tried to abduct the children. She said that the children became aware that their father was there and hid.

3. Applicant 1 said that in August 2013, she ran into her ex-husband at [a location] in Port Moresby. Again, she demanded that her ex-husband provide financial assistance for their children. Again, an argument ensued which resulted in her ex-husband physically assaulting her. Applicant 1 said that members of the public intervened to prevent the attack from continuing. Applicant 1 had provided a medical certificate dated [August] 2013 which indicated that she had sustained injuries to her side causing swelling redness and possible internal injuries as a result of a domestic attack by her ex-husband.

4. After that attack, Applicant 1 claimed that she feared for her life and organised to flee to Australia to avoid being harmed or killed by her ex-husband. She said that she left her two children with a friend named “[Person B]” and arrived in Australia in September 2013. Once in Australia Applicant 1 said that she had heard that [Person B] had abandoned her children. She said that she therefore returned to PNG in December 2013 to make arrangements for someone else to look after her children. She said that while she was in PNG she arranged for a couple who were family friends to care for [Applicant 3] and that [Applicant 2], who would have been [age] years old at the time, would remain in the family home. She said that a family friend who was [employed by the government] had offered to make sure that [Applicant 2] was fed and cared for.

5. Applicant 1 returned to Australia in February 2014 and has remained here ever since. She applied for a Protection visa on 17 April 2014.

6. Applicant 1 has recently remarried and claims that this will increase the chance that she will be harmed by her ex-husband as he will be jealous and shamed that his former wife has remarried.

7. Applicant 2, Applicant 1’s son arrived in Australia [in] July 2015 and applied for a Protection visa on 23 July 2015 on the basis of being a member of the same family unit is Applicant 1.

Applicant 3

1. Applicant 3 is the daughter of Applicant 1 and the sister of Applicant 2. She was born on [date].

2. Applicant 3 indicated that in around 2010 when she was about [age] years old she was present in a shopping area in Port Moresby when her mother was attacked by her father. She indicated that she intervened to try to prevent her mother from being beaten by her father and that a father hit her with a stick causing her a severe leg injury.

3. Applicant 3’s description of the events of the attack on that day was largely consistent between hearings and with the evidence of her mother.

4. Both Applicant 2 an Applicant 3 indicated that in 2011 their father attended their school looking for them. They both indicated that they became aware of this and ran away and hid in order to avoid detection by their father.

5. Applicant 3 indicated that from around 2014, their mother left her with a couple who were family friends. She indicated that the couple had a friend called [Mr A] who would often attend the couple’s home and drink alcohol with them. [Mr A] would often bring gifts including money for the couple. Applicant 3 indicated that from around 2015 the couple wanted her to marry or have sexual intercourse with [Mr A] as they believed that they would benefit if this were to occur as [Mr A] was considered to be wealthy. She indicated that the couple tried to coerce her or convince her to marry [Mr A].

6. Applicant 3 indicated that when [Mr A] would attend the couple’s house he would try and talk to her and touch her. He said the [Mr A] would speak harshly towards her and swear. She said that [Mr A] would ask her to have sex with him She said that she was not interested in [Mr A], that [Mr A] had other wives and that she was much older than her. Applicant 3 indicated that she was afraid that [Mr A] would kidnap her or try to rape her and so when he would visit she would try to leave the house and would go and stay with friends. Applicant 3 said she believed that the couple had accepted money from [Mr A] to take her as his wife.

7. Applicant 3 indicated that in early 2016 there was an attempt to abduct her. She said that she was walking home from school with a classmate when a van pulled up next to them. She said that three men exited the van, grabbed her and tried to pull her into the van. She said that both she and her friend resisted. She said that the men ripped her school uniform and that she sustained minor injuries during the abduction attempt. She said that her friend called out for help and that roadside vendors intervened. Applicant 3 said that the men in the van gave up their attempt to abduct her and fled in the van.

8. Applicant 3 said that she recognised one of the men who had tried to abduct her. She said that that man had accompanied [Mr A] on one of his visits to the couple with whom she resided. Applicant 3 indicated that this led her to believe that [Mr A] was behind the attempt to abduct her. Applicant 3 indicated that she sought the assistance of a paternal uncle. She said that she stayed with him for about two weeks before he accompanied her to Australia. She indicated that documents had been prepared on her behalf which indicated that her uncle was in fact her father. The Tribunal notes that Applicant 2 had also provided documents to the Department in relation to his application for a Visitor visa which provided Applicant 2’s grandfather’s name as his father’s name rather than the name of his real father.

9. Applicant 3’s solicitor submitted to the Tribunal that it is very common in PNG for government authorities to issue documents including birth certificates which contain whatever information is provided by applicants without verifying that information. The Applicants’ solicitor indicated that Applicant 3 was under 18 when she sought to travel to Australia and that a birth certificate was obtained indicating that her uncle was her father in order for Australia to allow the Applicant 2 travel to Australia with her uncle. The Tribunal notes that this explanation and finds support in the DFAT Country Information Report: Papua New Guinea 10 February 2017 which provides:

“Document fraud occurs frequently in PNG, particularly in relation to documents of identity. It is reportedly very easy to obtain birth certificates in any name. DFAT is aware of cases where grandparents’ names have been placed on birth certificates rather than parents’ names. Fraudulent supporting documents, including fake bank certificates and letters of invitation, can also be readily obtained. It is reportedly not uncommon in cases of visa non-compliance for people to reapply under a new identity. DFAT is aware of cases in which people have obtained multiple passports in different names at the same time.”

Country information

1. The DFAT Country Information Report: Papua New Guinea 10 February 2017 provides the following in relation to the harm faced by women in PNG:

   “Women

   Article Five of the Constitution calls for equal participation by PNG’s women citizens in all political, economic, social and religious activities. The Office for the Development of Women, which sits within the Ministry of Religion, Youth and Community Development, has responsibility for women’s issues. The National Council of Women Act (2010) mandates the National Council of Women (NCW) to promote equal participation of women in society, and to support the government to eliminate all forms of discrimination against women. In addition to the NCW, several other civil society organisations are also dedicated to improving the situation of women in PNG. A number of women hold senior positions in business, the professions, and the civil service. At the time of publication, two government departments had female Departmental Secretaries.

   Despite official efforts to promote women, gender discrimination exists at all levels in PNG, and cultural barriers continue to place significant limits on the extent of female participation, including in politics (see above). In 2014, PNG ranked 158 out of 188 counties surveyed on the UNDP’s Gender Inequality Index (188 being the worst).

   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.

   A number of factors act as barriers to the full participation of women in the workforce in PNG. These include cultural stigma against women’s education or employment; gender discrimination; nepotism; the risk of violence and sexual abuse; high levels of female illiteracy; and low levels of female education. Restrictions to women achieving a good education include underage marriage, unwanted pregnancies, and lack of financial support.

   DFAT assesses that women across PNG have a high risk of societal discrimination due to long-standing traditional values and gender roles that restrict their ability to participate fully in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. 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. “

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. For the following reasons, the Tribunal has concluded that all three decisions under review should be set aside.

3. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

4. The Tribunal finds that all three Applicants are nationals of PNG. They have provided copies of the identity information pages of their PNG passports to the Department. The Applicants made no claim to be nationals of any other country. The Tribunal accepts the Applicant’s claims should be assessed against PNG for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

5. The Tribunal has a number of concerns with the evidence of the Applicants.

6. For example, the Applicants often had difficulty remembering dates when certain events occurred and there was some inconsistency both internally and with each other as to when certain things happened. It also appeared that Applicant 1’s evidence was not particularly clear as to how often she would meet and fight with her ex-husband.

7. Similarly, at the hearing, at first Applicant 3 indicated that the man who wished to marry her was named [name] before then correcting herself to say that his name was [Mr A]. There also seemed to be some inconsistencies between the evidence of Applicant 2 and Applicant 3 as to where, and with whom, they lived after Applicant 1’s departure to Australia.

8. The Tribunal is also concerned that the documents provided by the Applicants to the Department in relation to their Visitor visa applications appeared to contain incorrect information. The Tribunal notes that this information was provided in relation to their applications for Visitor visas and not in connection with their applications for Protection visas. However, the Tribunal is willing to accept the explanation provided by the Applicants’ solicitor as to how and why these documents were provided, as discussed above.

9. The Tribunal accepts that Applicants 2 and 3 are the biological children of Applicant 1 and her former husband, [Mr C]. They have maintained that [Mr C] is the father of Applicants 2 and 3 throughout the proceedings and their evidence about the abuse suffered by Applicants 1 and 3 at the hands of [Mr C] has been consistent. The Applicants have also offered to undertake DNA testing to prove that Applicant 1 is the mother of Applicants 2 and 3.

10. The Applicants’ solicitor also advanced the argument that, given the very dire situation for women in PNG as outlined in the DFAT report, even if the Tribunal were to find that the Applicants’ claims were all concocted, the very fact that Applicants 1 and 3 are women from PNG is sufficient for them to meet the criteria in section 36 for the grant of a Protection visa. The Tribunal considers that there is some force to this argument.

11. However, the Tribunal does not need to decide these matters on that basis. That is because, overall, the Tribunal considers that the central parts of the Applicants’ claims have been, for the most part, consistent.

12. The Tribunal accepts that Applicant 1 has been the subject of violence by her ex-husband. The Tribunal accepts that Applicants 1 and 3 were badly beaten by Applicant 1’s former husband, the father Applicant 3, in around 2010.

13. The Tribunal accepts that in 2011 the father of Applicants 2 and 3 attended their school in an attempt to abduct the children. The Tribunal accepts that Applicants 2 and 3 discovered that their father was trying to collect them and ran away to hide in order to avoid this.

14. The Tribunal accepts that in 2013 Applicant 1 was beaten in public again by her ex-husband. This is supported by medical evidence provided to the Department.

15. The Tribunal accepts that Applicant 1 left PNG for Australia in 2013 to avoid further harm at the hands of her ex-husband. The Tribunal accepts that Applicant 1 left her two children in PNG with a family friend. The Tribunal accepts that the family friend effectively abandoned the children and that Applicant 1 returned to PNG in November 2013 in order to secure care arrangements for her two children.

16. The Tribunal accepts that Applicant 2 remained in the family home where he was assisted by a local [government employee] who would often provide him with food and financial assistance. The Tribunal accepts that Applicant 3 was left with a couple who were friends with Applicant 1.

17. The Tribunal accepts that in 2015 the couple who were caring for Applicant 3 began trying to coerce or convince her to marry or have sexual intercourse with a wealthy man named [Mr A]. The Tribunal accepts that [Mr A] used to bring gifts including money to the couple in the hopes of marrying Applicant 3.

18. The Tribunal accepts that when [Mr A] would visit he would drink with the couple with whom Applicant 3 resided. The Tribunal accepts that [Mr A] would proposition Applicant 3 for sex and would touch her. The Tribunal accepts that Applicant 3 was concerned that she would be abducted or raped by [Mr A].

19. The Tribunal accepts that in early 2016 three men attempted to abduct Applicant 3. The Tribunal accepts that her school uniform was ripped and that she sustained minor injuries as a result of the attempted abduction. The Tribunal accepts that Applicant 3 recognised one of the three men as one of [Mr A’s] friends who had attended upon the couple with whom Applicant 3 resided one evening. The Tribunal accepts that it was likely that the abduction attempt was done at [Mr A’s] bidding.

20. The Tribunal notes that although Applicant 1 and Applicant 3 had male family members and acquaintances while they were in PNG, those people were unable to prevent the harm which Applicant’s 1 and 3 suffered. These people included Applicant 3’s paternal uncle and the [government employee] who was providing assistance to Applicant 2.

21. The Tribunal considers that the harm that Applicants 1 and 3 three have suffered in the past when considered with the country information in the DFAT report as to the plight of women in PNG lead to the conclusion that there is a real chance that both Applicants 1 and 3 will suffer serious harm if they returned to PNG.

22. The Tribunal accepts that women in PNG are a particular social group for the purposes of the Act: see section 5L of the Act. Indeed, the DFAT report specifically identifies women in PNG as a group facing a high risk of gender-based violence. The report states:

    “DFAT assesses that women across PNG have a high risk of societal discrimination due to long-standing traditional values and gender roles that restrict their ability to participate fully in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. 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.”

1. As can be seen, the DFAT report indicates that violence against women occurs throughout PNG, meaning that relocation to avoid persecution is not an option. The report also indicates that is unlikely that women are able to avail themselves of adequate state protection. This information has been born out in the Applicants’ evidence. Applicant 1 sought protection from the local police after one of the attacks to no avail and she was beaten in [a named location] before being located and beaten in Port Moresby by her husband.

2. The Tribunal is satisfied that Applicants 1 and 3 face a real chance of serious harm owing to their membership of the particular social group of women in PNG. Therefore the Tribunal finds that Applicants 1 and 3 meet the criteria in section 36(2)(a) of the Act for the grant of Protection visas.

3. The Tribunal finds that Applicant 2 is a member of Applicant 1’s family unit for the purposes of the Act and the Regulations. The Tribunal finds that Applicant 2 is the dependent child of Applicant 1, the family head, and is usually resident in Applicant 1s household.

4. Therefore the Tribunal finds that Applicant 2 will meet the criteria for the grant of a Protection visa in section 36(2)(b) of the Act if Applicant 1 is granted a Protection visa.

   DECISION

5. The Tribunal remits Applicant 1’s matter for reconsideration with the direction that Applicant 1 satisfies s.36(2)(a) of the Migration Act.

6. The Tribunal remits Applicant 2’s matter for reconsideration with the direction that Applicant 2 will satisfy s.36(2)(b) of the Migration Act if Applicant 1 is granted a Protection visa.

7. The Tribunal remits Applicant 3’s matter for reconsideration with the direction that Applicant 3 satisfies s.36(2)(a) of the Migration Act.

   Tigiilagi Eteuati
   Member