1605765 (Refugee)

1605765 (Refugee) [2019] AATA 1124 (10 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605765
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Frances Simmons
DATE:10 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 09 May 2019 at 6:00pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – membership of a particular social group – women accused of witchcraft – women in PNG – fear of harm from members of late husband’s clan – customary wife – late husband’s estate – decision under review remitted
LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
DFE16 v MIBP [2017] FCCA 308 (Judge Smith, 10 March 2017)
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Khawar (2002) 210 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

The applicant, who is a citizen of Papua New Guinea (PNG), applied for a protection visa on 28 August 2015. The applicant was the customary wife of a wealthy [PNG] businessman. She claims that following the unexpected death of her husband in 2014 relatives of his first wife and members of his extended family threatened to kill her and accused her of sorcery. She claims that there was a dispute about the distribution of her late husband’s estate and that the threat of violence prevented her from attending his funeral. She fears that if she returns to PNG she will be killed or tortured by members of her late husband’s first wife and his extended family members.
This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the applicant is a refugee and this matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.
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.
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).
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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a [age]-year-old national of Papua New Guinea (PNG). Her parents, [siblings], one biological [child], two adopted [children] reside in PNG. Two [siblings] have passed away. She had lived [at a number of] addresses in PNG including Morobe Province, [City 1] and most recently in Port Moresby. Her first marriage ended in divorce and she married [Mr A] in a customary marriage in 2010. She had worked in several jobs in PNG [from] December 2007 to October 2010. She had travelled previously to [numerous countries].
The applicant’s late husband died in Australia [in] July 2014. Before his death the applicant had travelled to Australia numerous times before being granted a [temporary visa] on 6 September 2012. The applicant and her late husband resided at a property in [Australia] and the applicant regularly travelled between PNG and Australia. The applicant returned to PNG [in] July 2014 with her late husband’s body before returning to Australia [in] August 2014. She subsequently travelled to PNG on 4 occasions for periods [of a few] days.[1] She last travelled to PNG [in] February 2015 and returned to Australia [a few] days later on [date]/02/2015. Her [temporary] visa ceased on 10 August 2015 and she remained in Australia without a valid visa until she applied for a protection visa on 28 August 2015.
[1] The applicant travelled to PNG: [in] September 2014 returning to Australia [in] September 2014; [in] September 2014 returning to Australia [in] September 2014; [in] December 2014 returning to Australia [in] January 2015; [in] February 2015 returning [in] February 2015.
Summary of claims before the Department
The applicant claims to fear being killed by members of the family clan of her late husband’s first wife. She claims that she was accused of killing her husband by sorcery. She claims the first wife and her relatives wanted to prevent her from receiving a share of her late husband’s estate. What follows is a summary of the information provided about her claims and circumstances in her application for protection visa, her statutory declaration dated 18 November 2015, and in her interview the delegate on 23 November 2015.
·The applicant’s husband passed away in [Australia] in July 2014 of [a medical condition]. The applicant said she was not aware of his illness until very shortly before he passed away. His body was repatriated to Papua New Guinea [in] July 2014. She accompanied her husband’s body to Port [Moresby]. In Port Moresby and there was a mourning period where people paid respects to her late husband. During that time she was staying in a hotel and she was surrounded by family [members].
·People in PNG believe in witch craft and natural deaths are always viewed with suspicion. The family members of her husband’s first wife and other extended family members believed that that she had something to do with his death — they had not known that he was unwell. To the delegate the applicant said that a lot of people were not happy that her late husband suddenly passed away and they thought she had something to do with his death. She was accused of sorcery, verbally abused, and threatened.
·The applicant didn’t have any conflicts with her late husband’s family members before his death but problems occurred after his death because senior members of his extended family (his estranged wife and relatives) believed that she had something do with his death. While her husband was alive, his first wife [did] not cause any trouble. However, after her husband passed away, his first wife decided that she was not entitled to any of his estate, and she began threatening the applicant through other people. The applicant claimed she was physically threatened and verbally abused in Port Moresby, as well as being threatened in her husband's home province when she travelled to [City 1] with his body. On one occasion in Port Moresby, a person came to her hotel room to harass her, but she was with her family members and they didn't open the door.
·The applicant claims that her husband’s body was transported to [City 1] so that he could be buried in [Village 1] where he was born. Her late husband’s first wife resides in this village and her family are prone to superstition. The first wife’s family accused the applicant of killing her husband by sorcery in order to take hold of his money. She is afraid she will be still be harmed because people from the Highlands do not forget things.
·The applicant went with his body to the [City 1] but because of death threats against her she had to stay in [Village 2] with the immediate family members of her late husband. She became aware that relatives of her late husband’s first wife as well as other members of his extended family were planning to harm her from other family members and from village councilors who had overhead them talking about what they wanted to do to her. Her husband was buried in [Village 1 in] July 2014 but she could not attend his funeral because relatives of her late husband's ex-wife as well as other members of his extended family were planning to harm her.
·The applicant had to flee [City 1] after two days as it was not safe for her. She was receiving threats every day, from members of her late husband’s family; people would approach her aggressively, verbally and physically. Questioned about whether she was assaulted, she said that she was physically pulled and touched by people who were trying to hurt her but she avoided being beaten. She had to move around two or three times between different houses in [Village 2] because people came to the houses where she was staying and demanded aggressively that she come out. The village councilors had to ask them to go away, which took time. If she had gone out anywhere in the Highlands she would have been killed immediately. People in that part of PNG chop people up in public and they don't care who sees.
·The applicant claims that she is one of the beneficiaries to her late husband's estate and this has angered his ex-wife, who wants to be the sole beneficiary and her relatives. Her late husband was a successful businessman and had a lot of money and assets. She claims that the administrator of his estate wants to exclude her as a beneficiary from the estate so that she doesn’t get the monthly allowance that her husband left for her and the vehicle she is using. They don't want her to get any benefits from the estate whatsoever.
·The applicant believed that if she sought assistance from the police it would make things worse for her because people would find out where she was. The police were helping to keep the peace at her husband's funeral, but they were not trying to protect her. They were acting to assist her late husband's ex-wife, whose [relative] works with [an official], and to prevent any trouble from breaking out. The police in PNG are corrupt, they do not keep information confidential, and they are easily bribed. She does not trust them to protect her.
·It is impossible for her to relocate anywhere in PNG. It would be very difficult for her to get a job because she could not go out in public without making herself vulnerable. She fears financial hardship as she will be excluded as a beneficiary to her late husband’s estate and will not be able to obtain a job because she will be hiding. The people who have threatened her would still look for her wherever she was in PNG. She is terrified by the stories she has heard about what they want to do to her. If someone recognises her, they will tell the people who have threatened her and they will come and find her and kill her. PNG is a small place. Even if she lived in a wealthy part of Port Moresby, she would have to live in hiding.
·The applicant claims there is nowhere in PNG that she will be safe and it will be easier for people to kill her away from Port Moresby. Her husband was very well known and people will know she is his widow. She told the delegate most of the police knew what was going on, and she didn’t seek help because she didn’t want to aggravate the situation. She was worried about the police being bribed and telling people. Family members received certain threats but nothing had happened beyond threats. Her [child] experienced some harassment after her late husband died. Her relatives have told her certain people always ask about her, say bad words about her and ask about whereabouts.
·When questioned by the delegate about why she returned to PNG following her husband’s funeral, she gave evidence she returned to PNG after the funeral because her lawyers wanted to see her in person to discuss her rights as beneficiary and she wanted to make sure certain family members were ok. The applicant told the delegate she went through a lot of troubles and she had family members who tried their best to look after her but she was in fear all the time when she went back and after February 2015 she decided not to return to PNG because things were getting out of hand.
The applicant’s protection visa application was accompanied by a statutory declaration from [Mr B, an official in PNG], dated [July] 2015, a statutory declaration from [Mr C], brother of the late [Mr A], dated 20 July 2015; and a statutory declaration from [an official] of [Village 2], dated 20 July 2015.
The applicant’s representative made submissions on her behalf on 26 November 2015.
The applicant also provided documentation supporting her claims that she one of several parties to legal proceedings in the matter of the Estate of Late [Mr A][2] including a notice of motion in [a court in Suburb 1], dated [August] 2015, removing the applicant’s name from monthly allowance provided by [Mr A’s] estate.
[2] Letter from [lawyers] dated [March] 2015 stating that they represent the applicant in the matter of the Estate of the Late [Mr A]; A consent order in [a court in Suburb 1], dated [December] 2014, indicating the applicant is a party to the proceedings
The Department’s file also contains a Statutory Declaration from [Mr A], dated 21 March 2014, concerning his relationship with the applicant. [Mr A] declares that he will financially sponsor the applicant [in] Australia and that they are in a de-facto relationship, have been since 2007, and that he has known her since 1987.[3] The declaration is accompanied by a copy of the biodata page of his passport.
[3] Departmental file, f.46-46 (this declaration may have been placed on the departmental file by the delegate as the applicant appeared unaware of its existence) and f.46 (passport biodata page).
The delegate accepted that the applicant was the customary wife of [Mr A] and that she returned to PNG for his funeral in 2014. The delegate acknowledged that the discriminatory and abusive treatment of women in PNG is pervasive and considered the applicant’s claims to fear persecution on the basis of two particular social groups, ‘women in PNG’ and ‘women accused of witchcraft in PNG’. However, the delegate formed the view that the applicant had ‘either fabricated the claim of receiving death threats and facing a real risk of being killed’ by relatives of her late husband’s first wife or greatly exaggerated such a risk. The delegate found three statutory declarations provided in support of her application were likely to be forgeries.
The delegate found that there was no real chance that the applicant would be persecuted in PNG for reason of her membership of a particular social group of women or women accused of witchcraft. The delegate noted that the applicant also claimed to fear suffering significant harm such as rape, physical abuse or killing at the hands of ‘random men’ and criminals. The delegate characterised the crime rate in PNG as ‘exceptionally high’ but found that the risk of being a victim of violent crime was one faced by the population of the country generally and not by the applicant personally. The delegate also considered that due to her high social status, political connections and financial situation the applicant had a better chance of availing herself of protection than most PNG citizens.
Application for review
The applicant provided a copy of the delegate’s decision with her application for review.
The applicant provided a statutory declaration dated 3 December 2018 in which she reiterates that she fears she will be ‘blamed for sorcery and will be tortured in public’. She states she will go through a lot of hardship and difficulty if she returns to PNG because she does not have a home and a job. She is terrified by the threats that have been against her and will not be able to work because she will too afraid of her life being taken. She claims that after her husband died she was treating unfairly by the administrator of estate and excluded as a beneficiary in 2015. She engaged lawyers in PNG to represent her interests but because of the unfair decisions of the administrator she could not pay their fees and they ceased to act for her. She owes the lawyers [amount] to date but this money should have been paid by the administrator. If she returns to PNG she is worried she will be sued for their unpaid bills and eventually end up in jail.
With respect to the dispute about the estate of her late husband the applicant has submitted additional documentation to the Tribunal including: a copy of a Court order issued by the [a court in Suburb 1] PNG, dated [May] 2016, stating that the matter was adjourned [in] July 2016, that maintenance payment was varied to be only paid to the first wife and that the distribution of the deceased estate shall be resolved between the Administrator and beneficiaries, failing that the parties shall proceed to mediation; a copy of mediation orders from [a court in Suburb 1] PNG, dated [in] August 2016; and a copy of the deed of settlement in relation to the estate of [Mr A], dated [in] October 2016, signed by the parties to estate. The applicant has also provided a statement of account issued to her in relation to legal fees for her Claim on the Estate of the Late [Mr A], dated [July] 2016.
The applicant appeared before the Tribunal to give oral evidence and present arguments at a hearing held on 21 March 2019 and 24 April 2019. The Tribunal took evidence from [Mr C] via telephone who affirmed that he was the author of the statutory declaration submitted to the Department and provided a copy of the biometric page of his passport to the Tribunal. Where relevant the applicant’s oral evidence to the Tribunal and the evidence of [Mr C] is referred to below in the assessment of claims and evidence. He corroborated the applicant’s claims that she was unable to attend the funeral of her late husband because of threats and told the Tribunal that while his later brother’s estate had now been settled he believed that the applicant was still at risk of violence in PNG.

The applicant also provided [an] account statement in the name of the applicant and [Mr A] for the period [of] August 2015 to [November] 2015 and a contract for the sale of this property in [Australia], dated [September] 2015. On 24 April 2019 the applicant provided a statutory declaration in support of her claims from [a doctor] in PNG. The author of the statutory declaration declares that he has known the applicant since their childhood and, while he does not claim to have personal knowledge of attempts to harm her in [City 1], she is known to him, he has been informed about her circumstances and he is prepared to support her claims that she will now be at risk of harm if she returns to PNG.
ASSESSMENT OF CLAIMS AND EVIDENCE
Based on a copy of her PNG passport on the Departmental file. The Tribunal accepts the applicant’s claims should be assessed against PNG for the purposes of s.36(2)(a) and as the receiving country for the purposes of s.36(2)(aa).
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[4] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]
[4] The United Nations High Commissioner for Refugees', Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
[5] MIMA v Rajalingam (1999) 93 FCR 220.
[6] Randhawa v MILGEA (1994) 52 FCR 437, 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347, 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The applicant provided detailed and credible evidence about her relationship with [Mr A], his death, and her return to PNG. Although the Tribunal was initially concerned that she had exaggerated the threats that she had encountered in PNG, at the hearing the applicant expanded on the evidence she provided to the Department and the Tribunal found her to be generally credible witness who gave evidence in a forthright and frank manner. Her evidence that threats of violence from relatives of her late husband’s first wife prevented her from attending his funeral was corroborated by [Mr C], the brother of [Mr A], who gave evidence to the Tribunal. For the reasons discussed below, the Tribunal did have concerns that the applicant had embellished her claims that she was accused of sorcery, however the applicant has presented these claims consistently and her evidence is highly plausible in the context of the country information before the Tribunal. Having formed a generally favourable view of the applicant’s credibility, the Tribunal is prepared to accept her claims that she was accused of sorcery.
The applicant’s experiences in Papua New Guinea
The Tribunal accepts the applicant was the applicant was in a relationship with [Mr A], [details deleted]. The applicant told the Tribunal that her relationship with [Mr A] began in around 2008 and that they had a customary marriage. She met him previously; they had known each other for [a number of] years. Her husband had been with first wife for [a number of] years. He was separated when they married but his divorce from his first wife was never finalised. She told the Tribunal her late husband was very private person: she didn’t know a lot about his business and nor did she know he was dying of [a medical condition] until around a week before his death.
The Tribunal accepts that the applicant’s husband died suddenly in Australia. Her evidence about his death is consistent with [reports] of death one of which records:
[Details deleted].[7]
[7] [Source deleted].
The Tribunal accepts that [Mr A] died unexpectedly in [Australia] [in] July 2014 and that the applicant returned to PNG with her husband’s body on [in] July 2014 before returning to Australia [in] August 2014. The Tribunal accepts that her late husband’s family are from [the] highlands and [Village 2] and that her husband’s wish was to be buried in [Village 1] where he was born. The applicant told the Tribunal her late husband came from a big family and she had a good relationship with some members of his family. However, following his unexpected death in Australia some family members thought she had something to do with her death. People had different thoughts and some people thought she killed him. She knew that they wanted to her kill her because she had something to do with [Mr A’s] death and she was afraid that they may get someone to kill her. She had lived in PNG and she knew how it was.
The Tribunal accepts that the applicant was unable to attend the funeral of her late husband [in] July 2014 because of the threats made against her by relatives of his first wife and his extended family. The Tribunal accepts that the applicant had to leave [Village 2] because of the threats that were made against her. The Tribunal does not share the delegate’s view that the statutory declarations the applicant provided to the Department corroborating her claims that she was unable to attend her husband’s funeral because of threats against her life are likely forgeries. The applicant was not questioned about the three statutory declarations she provided in support of her application for a protection visa in her interview with the delegate and nor does it appear any inquiries were made to verify their authenticity. One of the authors of the statutory declarations, [Mr C], gave evidence to the Tribunal via telephone and confirmed that he made the declaration in July 2015.
In evidence to the Tribunal [Mr C] confirmed that he was the brother of the late [Mr A]. He gave evidence that was generally consistent with his statutory declaration and with the applicant’s evidence that although she travelled to [City 1] she could not attend the funeral in [Village 1] because of threats from the family of the ex-wife. He gave evidence that there was a dispute about the estate and that they wanted to kill her and that if she had gone to the funeral they would have killed her (they had guns and bows and arrows) and that is why she remained with relatives in [Village 2]. He acknowledged that the dispute about the estate had been settled, but expressed the view that the applicant was still at risk of harm from the relatives of the first wife (he gave evidence the first wife is presently in Port Moresby and travels between Port Moresby and [City 1]). He gave evidence that he had also been the subject of threats but these threats had not been acted on. He gave evidence that the applicant was in Australia when he made the statutory declaration and he also went asked for supporting statements from the village councillor and [Mr B].
The Tribunal acknowledges that the delegate’s concern that the statutory declaration from [Mr B] did not appear on official police letterhead and also that there appears to be an error in the spelling of [Mr B’s] name. It is no longer possible to make inquiries to verify with the [Mr B] whether he signed the statutory declaration in July 2015 as he died in [December] 2015.[8] Having considered the evidence of the applicant and [Mr C], the Tribunal accepts that, in an effort to assist the applicant, [Mr C] approached [Mr B] in [City 1] and a village councillor to provide statutory declarations corroborating the claim that the applicant was unable to attend the funeral of [Mr A] because of threats made against her and that these persons signed the statutory declarations submitted to the Department.
[8] [Source deleted].
The Tribunal notes the delegate was concerned that the statement by [Mr B] ‘states that the applicant first headed to [Village 1] where her late husband was to be buried but had to be taken to [Village 2] because locals prevented policeman assigned to her protection from entering the village and threatened her with violence’ whereas the applicant stated she never went to [Village 1]. However, the Tribunal notes the statutory declaration is not expressed in such clear terms and that the declaration does not suggest that [an official] was present in [Village 1] at the time of the funeral. Instead, it records that he ‘later found out’ that the applicant was taken to [Village 2] ‘because her life was threatened and it was not safe for her to stay in [Village 1]’. The Tribunal also does not consider minor discrepancies about the date on which the applicant’s customary marriage to [Mr A] occurred to be of significance.
Overall, the Tribunal considers the weight of evidence before it supports the applicant’s claims that she was unable to attend the funeral of her late husband in [Village 1] because relatives of his first wife threatened to kill her. The Tribunal accepts this claim.
The Tribunal accepts that the applicant’s late husband died without a will. The Tribunal accepts that a number of parties made claims on [Mr A’s] estate, including his statutory wife and the applicant. The Tribunal notes that country information indicates that women in PNG in customary marriages may face societal treatment inferior to those in statutory marriages. The Marriage Act 1963 permits both statutory and customary marriage, creating a dual marriage system. Under the law, customary marriages are entered into in accordance with the customs of the couples’ respective tribes.[9] Although registering marriages has been legally required since 2014, many customary marriages are not formalised or registered.[10] Due to the lack of official documentation, it can be difficult to differentiate between a valid customary marriage and a de facto relationship.[11] The Tribunal notes that that the documentation in relation to the estate of the applicant’s late husband refers to the first wife as [Mr A’s] ‘legal wife’ and the applicant as ‘claiming an entitlement as the de-facto wife’.[12]
[9] ‘Marriage in Papua New Guinea’, US Department of State, undated, accessed 6 December 2013, CIS26739. Also see: ‘Civil Registration (Amendment) Act 2014’, National Parliament of Papua New Guinea, September 2014, Section 9, CISEFCB23F7400
[10] ‘Bashed Up: Family Violence in Papua New Guinea’, Human Rights Watch, 4 November 2015, p.54, CISEC96CF13949; ‘Civil Registration (Amendment) Act 2014’, National Parliament of Papua New Guinea, September 2014, Section 9, CISEFCB23F7400
[11] ‘HIV, Ethics and Human Rights: Review of legislation of Papua New Guinea’, UNDP Pacific Centre, Regional Rights Resource Team SPC and UNAIDS, March 2009, p.23, CISE1310071718
[12] Tribunal file, f.49-54
The applicant’s evidence to the Tribunal about the dispute over her late husband’s estate was consistent with the legal documentation she provided to the Tribunal. The Tribunal accepts that the applicant initially received a monthly allowance from her late husband’s estate and that there was subsequently a notice of motion to remove her name from the monthly allowance followed by a court order to cease payment to the applicant and an order for the issue to be resolved between the parties. The documentation about this dispute indicates that while the matter was not finalised at the time the delegate made his decision, it was subsequently resolved by way of mediation (which the applicant attended by teleconference).[13] The applicant was no longer legally represented by the time the matter was referred to mediation and received a final payment of [amount] in the settlement. The documentation before the Tribunal indicates that [Mr A’s] first wife and other members of his family are entitled to monthly payments for the rest of their lives.
[13] Tribunal file, f. 49-54.
The Tribunal accepts that the settlement provides for ongoing monthly payments to [Mr A’s] first wife and other members of his family and that there is no provision for ongoing payments to the applicant. To the Tribunal the applicant provided oral and documentary evidence that she owned a property in Australia with her late husband but that this property was sold at a loss following his death because she could not meet the mortgage repayments. She also claimed, consistent with the documentation she produced to the Tribunal, that she was not in receipt of any ongoing payments from the estate of her late husband and received a final payment of [amount] in 2016. While the Tribunal has concerns that she has exaggerated the extent of financial hardship she has experienced since her late husband’s death, the Tribunal is prepared to accept that she has experienced financial strain since the death of her husband.
[Mr C] gave evidence that while the dispute about his brother’s estate had now been settled, it was his belief that the applicant would still be at risk of being harmed by relative of the first wife. He told the Tribunal ex-wife and some relatives would still want to kill the applicant as there was jealously because she was with [Mr A] in the good times and had enjoyed a privileged life. However, the Tribunal was concerned that, when asked whether the applicant was ever accused of sorcery, he said she was not. In response to the Tribunal’s concerns that [Mr C] did not corroborate her claims that she was accused of sorcery, the applicant expressed surprise and said his wife, among others, had informed her that such accusations had been spread. She also suggested he may have misunderstood the question. The Tribunal acknowledges that there were some difficulties taking evidence from [Mr C] by telephone and that, although interpreter was also available by telephone, [Mr C] did not always avail himself of her services. However, the Tribunal is not persuaded that [Mr C] misunderstood the Tribunal’s question.
The applicant has consistently claimed that she was accused of sorcery by relatives of her late husband’s first wife. Her claims are consistent with the country information that belief in witchcraft and sorcery is widespread across PNG, including in Port Moresby and the Highlands, and that women, particularly widows, can be especially vulnerable to violence following accusations of sorcery. DFAT reports:
there is a strong belief throughout PNG in the power of the supernatural, in particular the ability of ‘witches’ or ‘sorcerers’ to use magic. This belief is prevalent in both rural and urban areas. In some instances, when a person dies (generally of unexplained causes or prematurely), someone is accused of having caused the death by witchcraft and is attacked by the community as ‘payback’.
The identification of individuals as witches or sorcerers is arbitrary and subjective. The accusation may be motivated by considerations such as jealousy or greed (for example, seeing an opportunity to obtain the property of the accused); or aimed against those who do not fully fit, such as outsiders, the elderly, the disabled, or the marginalised, particularly women.[14]
[14] ‘DFAT Country Information Report Papua New Guinea’, DFAT, 10 February 2017, p.17
The Tribunal is mindful that, where it cannot make a finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[15] The Tribunal accepts that in the aftermath of [Mr A] death there was a dispute about the distribution of his estate and also that accusations of sorcery and witchcraft can be entangled with emotional drivers such as revenge, envy and fear and may be raised in the context of property disputes. On the evidence before it, the Tribunal accepts that the applicant was accused of sorcery by relatives of her husband’s first wife. The Tribunal also accepts that if the applicant were to return to PNG the family members of the first wife would become aware of this fact and that it is likely that she might again be subject to rumours and accusations that she used sorcery to kill [Mr A].
[15] MIMA v Rajalingam (1999) 93 FCR 220.
The Tribunal also accepts, based on the evidence of the applicant and [Mr C] that the applicant was subject to threats at the hotel she stayed in when she returned to PNG. The delegate observed that [Mr A] was extremely rich by PNG standards and owned property and therefore did not accept his widow would stay in a hotel upon her return to PNG or that she was threatened at a hotel. In evidence to the Tribunal [Mr C] gave evidence that when the applicant returned to PNG she was staying at [a] hotel and that he and some young men accompanied her to and from the hotel to protect her from being harmed. The applicant has stated she owned property in Australia with [Mr A] (she provided evidence of the subsequent sale of this property) but denied owning property in PNG. The applicant suggested title searches in PNG would establish this was the case and, while the Tribunal has not undertaken such enquiries, the Tribunal accepts based on the evidence before it and the documentation concerning her late husband’s estate that she does not own property in PNG.
In summary, the Tribunal accepts that the applicant was the customary wife of a [PNG] businessman. The Tribunal accepts that the applicant’s husband died in Australia and the applicant returned to PNG with his body. The Tribunal finds that the applicant’s husband died without a will and there was a dispute about the distribution of his estate. The Tribunal accepts that the applicant was unable to attend the funeral because relatives of her late husband’s first wife and his extended family threatened to kill her. While the Tribunal is not without doubt about this issue, the Tribunal accepts that the applicant was accused of sorcery and that relatives of her late husband’s wife and his extended family accused her of using sorcery to entrap and kill her late husband so as to benefit from his estate. The Tribunal accepts that the applicant initially had legal representation in this dispute but her lawyers stopped representing her because she was unable to pay their fees. The Tribunal accepts that the applicant received a final payment of [amount] and is not entitled to any further payments from her late husband’s estate. The Tribunal finds that the legal dispute about the distribution of [Mr A’s] estate concluded in 2016.
Whether there is a real chance that the applicant will be persecuted if she returns to
Papua New Guinea now
The Tribunal has considered the situation for the applicant if she returns to PNG now or in the foreseeable future. For the following reasons, the Tribunal is satisfied that there is a real chance that she will suffer serious harm should she return to PNG now or in the reasonably foreseeable future.
A well-founded fear of persecution
Under s.5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. The Tribunal has considered whether, when the question is examined objectively, there is a real chance the applicant will be persecuted if returned to PNG. 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 percent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

The Tribunal accepts that when the applicant returned to PNG following the death of her husband she was threatened with violence and accused of sorcery by members of the family of his first wife. The Tribunal accepts that the applicant was unable to attend his burial service due to the threats of violence against her and that rumours were spread about her involvement in his death. The applicant gave evidence that she believed that the first wife of her husband was resident in [City 1] and her witness, [Mr C], gave evidence that the first wife travelled between Port Moresby and [City 1]. On the evidence before it, the Tribunal accepts that the first wife and her relatives move travel between Port Moresby and [City 1] and that the applicant’s late husband was a [businessman] with a large family. The Tribunal accepts that if the applicant returns to PNG now or in the reasonably foreseeable future this fact will quickly become to know to the family members of her late husband, including those who have threatened the applicant in the past.
The past can be a guide to what could happen in the future, however, the Tribunal must determine whether there is a real chance the applicant would suffer persecution in the reasonably foreseeable future if she were to return to PNG, for one of the reasons set out in s 5J(1) of the Act. Given the legal dispute about her late husband’s estate has concluded and the applicant is not entitled to further payments from the estate, the Tribunal asked the applicant why any of his relatives or relatives of his first wife would still want to harm her. The applicant said that’s how they display their grievances, particularly people from the Highlands. She said that she had good relationship with her husband’s immediate family but after his death she faced hostility from members of his extended family. Relatives told her that it was believed that she had something to do with his death. She gave evidence that her husband’s first wife had always had ill-feeling towards her but while her late husband was alive she was protected. People believed she must have used sorcery to make [Mr A] want her and to provide for her and that she had been accused of sorcery. She reiterated that they wanted to kill her because they believed she had something to do with [Mr A]’s death.
After returning to PNG with the body of her late husband in 2014 and being threatened by family members of his first wife, the applicant subsequently travelled to PNG on four further occasions for periods between [a few] days.[16] She last travelled to PNG [in] February 2015 and returned to Australia [in] February 2015. Like the delegate, the Tribunal was concerned that the applicant’s decision to return to PNG after she claims she was threatened with death by the relatives of her husband’s first wife casts doubts on her claims that she feared harm in PNG. The applicant has stated that she returned to PNG because there was an ongoing dispute about her husband’s estate and she needed to see her lawyers. Her evidence is that she returned for short periods of time and stayed in a hotel. The Tribunal accepts, as did the delegate did, that the applicant returned to PNG for these short period of times there was ongoing dispute about her late husband’s estate. The Tribunal accepts that the applicant was motivated to obtain her share in the estate and that she took a risk in returning to PNG for short periods of time. On the evidence before it, the tribunal accepts that she has a subjective of being persecuted by family members of late husband’s first wife as required by s.5J(1)(a) of the Act.
[16] The applicant travelled to PNG: [in] September 2014 returning to Australia [in] September 2014; [in] September 2014 returning to Australia [in] September 2014; [in] December 2014 returning to Australia [in] January 2015; [in] February 2015 returning [in] February 2015.
The Tribunal accepts that while the applicant enjoyed status and wealth as [Mr A’s] customary wife, if she were to return to PNG now she would do so as a widow. Having accepted that some of the family members of her late husband suspected that she used sorcery to entrap and kill her late husband and that she has previously been the target of death threats, the Tribunal cannot dismiss the possibility that if the applicant returns to PNG the rumours that she was engaged in sorcery will be revived. The Tribunal accepts that allegations of sorcery are sometimes entangled with personal rivalries and property disputes. However, while the tribunal acknowledges that the legal dispute about [Mr A’s] estate has concluded, the Tribunal considers that there is a real chance that the anger, envy and hostility between the applicant and her husband’s first wife may persist as may the rumours about the applicant’s involvements in her late husband’s death.
The Tribunal finds that there is a real chance that the applicant would be subjected to significant physical harassment or ill-treatment by family members of her late husband or possibly members of community who believe rumours that she has engaged in sorcery. Having accepted that relatives of the first wife made death threats against the applicant in the past and that there were rumours about her late husband’s unexpected death and, having regard to country information that sorcery accusations are used as a means of revenge and settling hostilities, the Tribunal cannot dismiss as remote the possibility that rumours that the applicant was a sorcerer would be revived if she were to return to PNG and seek to reestablish herself in Port Moresby or elsewhere in PNG. The Tribunal accepts that, once rumours of sorcery take hold the person accused of sorcery is vulnerable to violence from members of the community because of the perception that the person is a sorcerer and that victims of sorcery-related violence are often marginalised members of society, such as women, including widows. The Tribunal accepts that [Mr A] had a highprofile in PNG and the applicant will be readily identifiable as his widow if she returns to PNG. After assessing all the evidence the Tribunal finds that the applicant has a well-founded fear of persecution in both Port Moresby and the Highlands.
The Tribunal accepts that if the applicant were to return to PNG she would be in a very different position to the position she was in when her husband was alive. The Tribunal accepts that her late husband was an extremely wealthy and well-connected man and that as his wife the applicant led a privileged and protected existence. However, since his death the applicant’s circumstances have changed and she would be returning to PNG as a widow without male protection. However, although the consideration of that internal relocation principle under the Convention requires an assessment of whether it would be reasonable for an applicant to relocate to another part of the country, no such consideration arises under the codified definition of refugee.[17] Accordingly, the question that the Tribunal must consider is whether the real chance of persecution must relate to all areas of PNG.
[17] DFE16 v MIBP [2017] FCCA 308 (Judge Smith, 10 March 2017) at [26].
In assessing whether there is a real chance that the applicant will face serious harm in all areas of PNG, the Tribunal has had regard to country information that women face very high levels of societal violence throughout PNG. With respect to gender based violence, DFAT reports that gender-based violence and crimes against children occur regularly, and total crime victimisation for women and children are likely to be heavily under-reported. Sexual discrimination against, and sexual harassment of, women is widespread and severe.[18] A 2013 study predicted that 70 percent of women would experience rape and assault in their lifetime.[19] The Tribunal notes that media reports suggest that women (particularly single and widowed women) are disproportionately subjects of accusations of witchcraft and sorcery. [20] For example, a report titled Sorcery and Sexism in PNG observes:
More broadly, this is about impunity when it comes to violence against women. It is women without male relatives, such as brothers or sons, or widows who have married into their husband’s village to be left stranded after his death who are often the targets. Often it is elderly women.
The UN’s Special Rapporteur on gender has said, “Women are the first to be blamed and targeted when there is an unexplained death or misfortune in a family or village” and thus lived in constant fear of being accused of sorcery.
But although women are disproportionately affected the drivers are not simply misogyny but rather money. Much like the terror of the Spanish Inquisition, “witches” are targeted in property disputes, according to Haro.
“Our work in the highlands with the Human Rights Defenders Network revealed that while in some cases accusations of sorcery are passed from family to family for generations and driven by strong beliefs, other claims are fabricated for financial gain. Recent research by Oxfam found that in 2 in every 3 accusations resulting in a relocation, sorcery accusations were used as a means of repossessing wealth or resources such as land, houses, or businesses of the person accused.”[21]
[18] ‘Country Reports on Human Rights Practices 2017. Papua New Guinea’, US Department of State, 20 April 2018, p.18 section 6, OGD95BE927331; National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Papua New Guinea’, Human Rights Council, 3 May 2016, p.18, CIS38A80124236 (the PNG government described gender-based violence as endemic).
[19] ‘DFAT Country Information Report Papua New Guinea’, DFAT, 10 February 2017, p.17; ‘Return to abuser: Gaps in servicers and a failure to protect survivors of family and sexual violence in Papua New Guinea’, Médecins Sans Frontières (MSF), March 2016, p.7, CIS38A8012323
[20] ‘DFAT Country Information Report Papua New Guinea’, DFAT, 10 February 2017, p.18; ‘Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo. Addendum. Mission to Papua New Guinea’, 18 March 2013, p.9 paragraph 34, CIS26802; ‘PNG police examine torture of women accused of killing man with witchcraft’, Davidson, H, The Guardian, 21 January 2016, CX6A26A6E8849; ‘Human Rights Watch World Report 2017’, Human Rights Watch, 13 January 2017, p.475, NG2A465F52; ‘Freedom in the World 2016 - Papua New Guinea’, Freedom House, 29 August 2016, NGE43874C475; ‘Sorcery killings increasing’, The National, 10 August 2016, CX6A26A6E16641
[21]'Sorcery and Sexism in Papua New Guinea', Diplomat, The, 02 June 2015, CXBD6A0DE7621
The delegate considered the possibility that the applicant may have been accused of witchcraft by some members of the local community in [Village 1] in the Highlands region, but as he could not locate reports that tribal activities extended from a place as small as [Village 1] to Port Moresby concluded that there was no real chance the applicant would face serious harm outside of the Highlands region.
The Tribunal has located reports of people from other areas of PNG, namely the Highlands region, accused of sorcery being killed in Port Moresby.[22] There are also incidents of violence against those accused of sorcery in Port Moresby occurring where the details of the victim’s background, including where they lived previously, are not provided (for example, in October 2016 three women and one man were found dead after being tortured; authorities reported their deaths were related to sorcery accusations).[23]
[22] ‘Two dead, one injured in sorcery killing’, 19 October 2016, Papua New Guinea Post Courier, CX6A26A6E16648; ‘Man wounded, buildings burnt over sorcery claims in NCD’, Loop PNG, 16 October 2016, CX6A26A6E16649; ‘Education needed to change sorcery mindset’, 18 October 2016, The National, CX6A26A6E16647; ‘Sorcery claims leave two dead’, Papua New Guinea Post-Courier, 24 August 2012, CX293852
[23] ‘Country Report on Human Rights Practices 2016 - Papua New Guinea’, US Department of State, 3 March 2017, p.21, OGD95BE926861
The Tribunal accepts that if the applicant were to return to PNG she would be identifiable as the widow of her late husband wherever she was in PNG. The tribunal accepts her late husband’s first wife travels between [City 1] and Port Moresby. The Tribunal has had regard to advice from DFAT, which states that:
Tribal feuds can and have relocated from their original location - there have been cases of payback killings carried out in major cities. Those fleeing accusations of witchcraft are particularly vulnerable – rumours can quickly travel from the Highlands to major cities, and those accused are less likely to be able to obtain the support of wantok networks.[24]
[24] DFAT Country Information Report Papua New Guinea’, DFAT, 10 February 2017, p.18
Having regard to the high profile of her late husband and that his family members are resident in different parts of PNG, and that his first wife travels between [City 1] and Port Moresby, the Tribunal accepts that there is a real chance that if the applicant returns to PNG the rumours about the cause of her husband’s death and the allegations of sorcery against the applicant may be revived and become known wherever she is in PNG.
On that basis, the Tribunal is satisfied the applicant faces a real chance of serious harm throughout PNG. The Tribunal finds that the real chance of persecution relates to all areas of PNG: s.5J(1)(c).
Effective protection measures are not available
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
With respect to the question of whether State protection is available to those accused of sorcery, DFAT reports:
Police are frequently reluctant to intervene in witchcraft cases. They themselves are members of the community and might face retributive attacks, or may be themselves afraid of the alleged sorcery or witchcraft tool. Large and highly agitated groups of people generally carry out sorcery-related killings. In some cases, police have reported that they lacked the manpower to intervene against large crowds. Human Rights Watch reported in 2015 that the risks to people accused of sorcery were so real and severe that the main approach used by NGOs seeking to help them was to relocate the accused to another community.
In May 2013, PNG repealed the Sorcery Act (1971). Section 16 of the Act had allowed for sorcery as provocation to be used as a defence in cases of sorcery-related murder. At the same time, the government changed the law to allow for the execution of those convicted of wilful murder of a person because of accusation of sorcery, aggravated rape, and robbery … The actions came after a series of brutal public killings, including the burning alive of a 20 year old woman in a village market in February 2013, and the beheading of a woman accused of black magic in April 2013.
On 21 July 2015, PNG’s National Executive Council endorsed a Sorcery and Witchcraft Accusation National Action Plan aimed at reducing sorcery-related violence. The plan, allocated a budget of PGK3 million (AUD1.44 million) in 2016, focuses on five strategic areas: care and counselling; advocacy and communications; legal and protection; the health sector; and research. At the time of publication, however, the funds approved for the implementation of the National Action Plan were yet to be released.
DFAT assesses that those accused of sorcery or witchcraft in PNG face a high risk of societal discrimination and violence. This discrimination may include being illegally detained, beaten or tortured, having their possessions stolen, being forced to leave their communities, or being killed.
DFAT assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. According to DFAT, women living in the Highlands provinces are at particular risk, although violence against women occurs nationwide. While there has been some progress on policies and plans to protect women against gender-based violence and to respond to violence following sorcery allegations, the incidence of gender-based violence remains extremely high. Women subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services. Sexual violence has been committed by police against women in detention.[25]
[25] ‘Country Reports on Human Rights Practices 2017. Papua New Guinea’, US Department of State, 20 April 2018.
Despite government announcements of additional funding to address violence against women and violence following sorcery accusations, reports indicate that resources available are inadequate and there are reports police sometimes fail to investigate reported cases. In 2018 Amnesty International reported that
Papua New Guinea remained one of the world’s most dangerous countries to be a woman, with increased reports of violence against women or girls, sometimes following sorcery accusations.[26]
In November, a six-year-old girl was cut and burned following accusations of sorcery in Enga. Her mother, Kepari Leniata, had been publicly burned to death in Mount Hagen in 2013; no perpetrators have been brought to justice. Authorities often failed to adequately investigate or prosecute cases of violence following sorcery accusations because of the deeply held customary beliefs of police officers and the community.[27]
[26] ‘Amnesty International Report 2017/18’, Amnesty International, p.44.
[27] ‘Amnesty International Report 2017/18. The State of the World’s Human Rights’, Amnesty International, 22 February 2018, p.296, NGED867A612
In 2019 Human Rights Watch reported that sorcery-related violence in PNG continued unabated, with women and girls the primary targets and that the government’s 2013 Sorcery National Action Plan is inadequately funded and has yet to be implemented.[28] Legal reforms introduced in 2013 providing harsher penalties for sorcery-related violence have rarely been enforced and police have often failed to adequately investigate and to prosecute cases of violence following sorcery and witchcraft accusations because of the customary beliefs of the community and of police officers.
[28] ‘World Report 2019', Human Rights Watch, p.455 (noting that in December 2017, the PNG government announced A$4 million (US$2.9 million) of funding for sorcery awareness and education programs. In July, the National Court sentenced eight men to death for their involvement in a sorcery-related killing of seven people. PNG continued to impose the death penalty, although authorities have not carried out any executions since 1954).
The country information indicates that state protection from the PNG authorities nationwide is weak, unpredictable and vulnerable to significant corruption. The Tribunal accepts that the applicant is concerned that her late husband’s first wife has connections among the government and the police in PNG. The Tribunal accepts the applicant’s evidence that her financial circumstances have changed since her husband died: she believes she has been treated unfairly by the administrator of the estate and, while she believes her legal fees should have been paid by the administrator, is not sure whether this is in fact the case and she is worried that she may have outstanding debts in PNG. She has also said that her late husband’s brother, [Mr C], who lives in [City 1], cannot protect her. She gave evidence that while she could live with her [siblings] in Port Moresby but she was afraid that she would be the target of violence by people acting on behalf of the relatives of the first wife.

The Tribunal accepts that [the] applicant will be identifiable as his widow, that there were rumours surrounding the circumstances of his death, and that having regard to all the circumstances of this case, there is a real chance that the applicant will be the target of sorcery accusations and sorcery-related violence if she returns PNG. The Tribunal observes that the delegate considered that the applicant would be able to access state protection as she ‘clearly belonged to PNG high society’ [details deleted]. However, as noted above, DFAT assesses that there is a high risk of gender-based violence for women in PNG irrespective of their social status.
Furthermore, the Tribunal finds that the applicant’s social status and financial position has changed following the death of her husband. The Tribunal accepts that the applicant is not in ongoing receipt of payments from her late husband’s estate and that, notwithstanding reports that he was [successful], she received a final payment of [amount] in 2016. The Tribunal notes that when delegate asked the applicant if she expected help from her late husband’s business associates and she said they were in touch at the time of his death but after his death no one wanted to know her. The Tribunal finds that the applicant is now a widow without male protection and, as a result of the death of her husband and ensuing dispute about the distribution of his estate, her financial circumstances and her social status in PNG has changed.
Based on the country information noted above, the Tribunal also considers that the reason why state protection is not available to the applicant is because the state tolerates or condones violence against women generally and women accused of sorcery in particular. The country information available to the Tribunal indicates that gender based violence and discrimination is culturally and socially sanctioned in PNG and that the State routinely fails to protect women and girls who are subject to gender-based violence, including violence following accusations of sorcery.
Having regard to the above country information, the Tribunal is not satisfied that effective state protection measures are available to the applicant throughout PNG: s.5J(2).
The essential and significant reason for the persecution
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if there is a real chance that she would be persecuted in her country of nationality for reasons of her race, religion, nationality, membership of a particular social group or political opinion. Section 5J(4) requires that, for a fear to be well-founded, one or more of the reasons in s.5J(1)(a) must be the essential and significant reason for the persecution, it must involve serious harm, and must involve systematic and discriminatory conduct. It is well-established that women are capable of forming a particular social group.[29] The Tribunal considers women accused of sorcery are not solely identified by a shared fear of persecution. The Tribunal accepts women accused of sorcery in PNG are distinguishable from society at large and cognisable by the shared characteristic of their gender and the perception that they practise sorcery. This group is not solely identifiable by a shared fear of persecution. The Tribunal finds the women accused of sorcery share characteristics that distinguishes this group from society at large as required by s.5L of the Act.
[29] MIMA v Khawar (2002) 210 CLR 1.
The Tribunal finds that the essential and significant reason that there is a real chance the applicant will face persecution if she returns to PNG is because of her membership of a particular social group of women accused of sorcery. While there are additional factors that point to the particular vulnerability of this applicant, including her status as a widow, the high profile of her late husband, and her lack of male protection, the Tribunal does not consider it necessary to postulate the existence of a particular social group that is formulated in narrower terms than that of women accused of sorcery in PNG. The Tribunal is satisfied that there is a real chance that the applicant will face serious harm, in the form of threats to her life, significant physical harassment and ill-treatment, if she returns to PNG now or in the reasonably foreseeable future is her membership of a particular social group of women accused of sorcery in PNG.
The applicant’s fear of harm is from individuals. The Tribunal finds that while accusations of sorcery can be made for reasons of personal enmity or to secure an advantage in property disputes, when these rumours of sorcery take root in a community the risk of physical harm to the accused person generally arises because the perpetrators perceive that the accused uses sorcery and also that the accused is vulnerable and lacks protection from attacks. The Tribunal finds that the reason why the applicant would be subject to violence from non-state agents (either from relatives of the first wife or from members of the community who had heard that she was accused of sorcery) is because she is a woman accused of sorcery. Therefore the Tribunal considers the essential and significant reason that the applicant would face harm is because of her membership of a particular social group of women accused of sorcery.
In any event, in matters such as this where the agent of harm is not the state itself, but private individuals, the Tribunal must consider the issue of 'state protection' and whether or not, and, if not, why not, the state would afford her protection from the harm she fears from non-state agents. Based on the country information before it, the Tribunal accepts that there is a widespread and systemic failure to effectively protect women in PNG from gender-based violence, including sorcery-related violence and this is the case notwithstanding the introduction of laws criminalising sorcery-related violence and some efforts to address gender-based violence. In this case, the Tribunal accepts that the PNG state would selectively and discriminatorily withhold state protection from the applicant by tolerating or condoning the gender-based violence that she would suffer for reasons of her membership of the particular social group of women or women accused of sorcery.[30] Such denial of protection amounts to persecution.
[30] MIMA v Khawar (2002) 210 CLR 1
In summary, the Tribunal accepts that the real chance the applicant will be persecuted by family members of her husband’s estranged first wife relates to all areas of the receiving country and that the persecution involves serious harm as required by s.5J(5) and systematic and discriminatory conduct. The Tribunal finds that the authorities cannot protect the applicant from the persecution she fears because effective protection measures as defined in s.5LA of the Act are not available to her throughout PNG: s.5J(2). Section 5J(3) does not prevent the applicant from having a well-founded fear of persecution because there are no steps she could take to modify her behaviour so as to avoid a real chance of persecution in PNG. The Tribunal accepts that the persecution she is at risk of suffering for the essential and significant reason of her membership of a particular social group of women accused of sorcery and that the harm involves serious harm and systematic and discriminatory conduct, as required by s.5J(4).
For the reasons given above the Tribunal is satisfied that the applicant has a well-founded fear of persecution as defined in s.5J of the Act. Therefore, she meets the meaning of ‘refugee’ set out in s.5H of the Act.
The applicant raised other claims arising out of the circumstances she would face as a widow of a [businessman] and a woman without male protection living in PNG. However, having found that the applicant is owed protection for the reasons given above, it is unnecessary to address these claims further or to consider whether the applicant is owed complementary protection.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Frances Simmons

Member
1. ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 1124

10 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction