Evidence
Evidence Before The Court
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 EVIDENCEBackground 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.
Decision
Reasons for decision
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 SimmonsMember ATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
