1711494 (Refugee)

[2021] AATA 2007

1711494 (Refugee) [2021] AATA 2007 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711494

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Tamara Hamilton-Noy

DATE:30 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 30 April 2021 at 10:24am

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – single female – no male protection – brought up by aunt – victim of abuse – situation of single women – lack of protection from authorities – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant arrived in Australia [in] August 2014 and applied for protection on 31 October 2014.[1]

   [1] Relevant dates obtained from the Department decision, a copy of which was provided by the applicant to the Tribunal. 

   CLAIMS AND EVIDENCE

   Evidence before the Department

3. In her written protection application, the applicant said she had left Papua New Guinea because it was offered to her [to] come to Australia for a holiday with her uncle and his family in Melbourne.  In response to the question of whether she had experienced harm in Papua New Guinea she stated ‘yes’ and said that there is a lot of innocent killing going on and men raping young girls; people are accusing others for no good reason and as a result the whole community are locked up in their homes before dark; and there is no safety in the country because the responsible people are corrupt and cannot attend to innocent people’s problems.  The applicant stated that, if she returns to Papua New Guinea, she has no father, her mother has mental problems and the person who brought her up cannot look after her anymore; she will be homeless and there is no security for her and she worries that something bad will happen to her, such as being raped or killed.  She stated that she does not believe the authorities can protect her.

4. On 14 February 2017, the Department was provided by the applicant’s representative a letter prepared by [Organisation 1] dated 6 February 2017.  On 19 April 2017, the applicant’s representative provided written submissions to the Department, a statutory declaration prepared by the applicant and a psychological report prepared by [Organisation 1] dated 3 April 2017.

5. The applicant attended a Department interview on 20 April 2017.  The Tribunal has had access to a recording of the interview and relevant parts of the interview are referred to further below.

6. A delegate of the Department accepted the applicant was given to her aunt at a young age and was raised by her aunt.  The delegate did not accept the applicant’s claims that she had only completed one year of schooling in Papua New Guinea or her claims to have been mistreated by her aunt growing up.  The applicant claimed to fear harm because of her membership of the particular social group of women in PNG without the protection of a male relative.  The delegate found that the applicant’s fear of harm was due to socioeconomic vulnerabilities as she has no place to return to live.  The delegate found the applicant is not a refugee as her fear of harm is not due to her race, religion, nationality, membership of a particular social group or political opinion.  The delegate found that the applicant is supported by her uncle in Australia and could continue to be supported by her uncle if she returned to Papua New Guinea and that the harm claimed is not significant harm. 

   Evidence before the Tribunal

7. The applicant was invited to attend a hearing at the Tribunal’s Melbourne Registry on 20 April 2021.

8. Prior to the hearing, the applicant’s representative provided to the Tribunal legal submissions, photographs, witness statements, documents relating to the applicant’s schooling and letters of support from the applicant’s former and current employers, school and [sporting] club.  Relevant parts of this evidence are discussed further below.

9. The hearing was held on 20 April 2021.  The applicant and her representative attended the hearing and the Tribunal was assisted during the hearing by a Pidgin interpreter.  The Tribunal took evidence from two witnesses during the hearing, the applicant’s uncle [Mr A] (by phone to Papua New Guinea) and [Mr B], case worker at [Organisation 2] (in person).

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The relevant law

10. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

11. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

12. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

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

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

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

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

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

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

    Complementary protection criterion

21. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

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

    Mandatory considerations

24. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

    Assessment, reasons and findings

25. The applicant travelled to Australia on a Papua New Guinean passport and has at all times maintained that she is a citizen of Papua New Guinea.  The Tribunal accepts the applicant is a citizen of Papua New Guinea and has assessed her claims against Papua New Guinea as her country of nationality.

26. The Tribunal has listened to the recording of the applicant being interviewed by the Department and had the benefit of speaking to her face-to-face at the Tribunal hearing.  While not providing a great amount of detail to the Tribunal in her responses to the Tribunal’s questions, which was consistent with the level of detail she was able to provide the delegate, the Tribunal did not consider that this was an indication that the applicant was reluctant to give evidence or that it reflected on her credibility.  The Tribunal noted, and accepts, the matters raised in the [Organisation 1] report regarding the applicant’s presentation in a counselling context and the implications for her ability to give detailed evidence in a formal hearing environment.  The applicant’s claims, if accepted by the Tribunal, are that she had a very difficult childhood and it is understandable that she would be reluctant to expand upon these experiences during a Tribunal hearing.  The content of the applicant’s claims was consistent with her written claims and with the information she gave to the delegate at interview and the Tribunal considered that the applicant gave her evidence at the hearing in a spontaneous and credible manner.  The details of her evidence were consistent with the evidence given by her uncle and by [Mr B] during the hearing.

27. The Tribunal accepts that the applicant’s background and family composition is as follows.

28. The applicant was born in Port Moresby and was given to her father’s sister [as a child].  Thereafter the applicant lived with her aunt, uncle and cousins in Port Moresby until she left Papua New Guinea for Australia.  The applicant’s mother gave her to her aunt as she could not afford to look after her three children.  The applicant’s mother is believed to have mental health issues.  The applicant does not know the specific nature of these mental health issues.  She had little contact with her mother while in Port Moresby, saw her mother prior to leaving Papua New Guinea for Australia and has not had contact with her mother since that time.

29. The applicant’s father passed away when she was a child.  The applicant’s father has two brothers and two sisters.  One is the aunt who the applicant lived with as a child; another sister has passed away; her maternal uncle is living in a village outside of Port Moresby and is ill; and the other brother is [Uncle A] with whom the applicant resides in Melbourne.

30. The applicant lived with her aunt as a young child up until she left Papua New Guinea in 2014.  The applicant attended school for one to two years as a young child and her aunt then stopped paying the school-related costs and she was taken out of school.  From that time on she was required to undertake housework and cooking and look after children in the house.  Her perception is that she was treated ‘like a slave’.  She gave evidence to the Tribunal that, if she did not do what her aunt expected her to do, she was physically assaulted by her aunt, and was hit with a broom or with a fist on a regular basis.

31. The Tribunal spoke during the hearing to the applicant’s [Uncle A] who has provided her accommodation since her arrival in Australia.  [Uncle A] spoke in a clear and credible manner about his understanding of the experiences the applicant had had as a child, of his family’s concern at hearing the conditions that the applicant was living under with her aunt, and of his and his daughter’s plans to bring the applicant to Australia because of their concern that she would be seriously harmed or killed due to the family violence that was being perpetrated on her.  The Tribunal accepted this evidence and accepted that it was [Uncle A] and his family, and not the applicant’s aunt, who had organised her ticket for Australia.  The Tribunal accepted that the applicant’s understanding, from what her aunt had told her, was that her aunt had organised the ticket to Australia but that this was incorrect.  The Tribunal accepted that it was [Uncle A]’s daughter [who] was particularly concerned about the welfare of the applicant and who instigated the ticket to Australia and for [Uncle A] to travel to Papua New Guinea to bring the applicant back to Australia with him. 

32. The Tribunal also heard from [Mr B] during the hearing.  While he did not assert he had directly observed any of the applicant’s experiences with her family in Papua New Guinea, his evidence suggested that he had had extensive contact with several members of the family who are residing in Australia and who had clearly expressed their concerns to him about the experiences of the applicant in Papua New Guinea.

33. An estimated 75 per cent of the child population in Papua New Guinea face physical or emotional violence and 50 per cent face sexual violence or family violence in the home, with inadequate child protection systems particularly in rural areas and a lack of reporting to police on the basis that family violence is viewed as a domestic matter.[2]  The experiences outlined by the applicant were consistent with country information about the situation for children in Papua New Guinea and are accepted by the Tribunal.  The Tribunal finds that, from an early age until she left Papua New Guinea at the age of [age], the applicant was subject to regular family violence from her aunt in the form of verbal, emotional and physical abuse. She was subject to attempted assaults on a number of occasions from her male cousin who also resided in the house with the family.  She left Papua New Guinea at [age] years of age after being incorrectly accused by her aunt of having a sexual relationship with her [relative].  At that point, the relationship between the applicant and her family in Papua New Guinea broke down to the extent that they have not had contact since that time and have not had contact with [Uncle A] and his family who have provided the applicant accommodation and financial and emotional support in Australia.

    [2] US Department of State, 2020 Country Reports on Human Right Practices, Papua New Guinea, 30 March 2021.

34. The Tribunal accepts that the applicant has attended English classes at [Organisation 2] and that she completed VCAL in 2017.  [Mr B] described the applicant as functionally illiterate at the time that she commenced classes at [Organisation 2] and that her ability to improve her English literacy to the point that she was able to pass VCAL was due both to her drive to succeed and to the family supports she had in place.  The Tribunal accepts that [Mr B] has held senior positions in the Victorian education system and, for this reason, placed weight on the evidence he gave to the Tribunal at the hearing.

35. The applicant’s account of very limited primary schooling is consistent with country information considered by the Tribunal, which indicates that education in Papua New Guinea is not compulsory, that half of all primary school age children are out of school, with fewer girls attending school than boys, and that most children do not remain in school long enough to learn basic learning skills.[3] The applicant’s evidence about her very limited schooling in Papua New Guinea is accepted by the Tribunal. 

    [3] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 2.24.

36. The Tribunal finds that, if she returns to Papua New Guinea now or in the reasonably foreseeable future, the applicant does not have a relationship with any family members who would be able to support her with accommodation, living expenses or social or emotional support.  She would be returning as a young female without any family or social supports.  The Tribunal finds that the applicant would return to the Port Moresby area, as it is the area she resided in for the majority of her life. 

1. The overall crime rate in Papua New Guinea is described as extremely high and as characterised by high levels of violence, particularly in Port Moresby, with car jackings, armed robberies, assaults and sexual assault, general violence and crimes against children regularly occurring.[4]  Levels of violent crime against women are extremely high across all areas of Papua New Guinea.  Family violence is described as endemic, with a 2013 survey indicating that 80 per cent of men in Bougainville reporting they had perpetrated physical and/or sexual violence against a partner.[5]

   [4] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 2.35.

   [5] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 3.34.

2. The situation for women in particular is dire, with Papua New Guinea being described as one of the most dangerous places in the world to be a woman or girl, and with violence against women and children being described as rampant.[6]  The UN Human Rights Council’s 2016 universal periodic review identified major areas of concern in Papua New Guinea to include gender-based violence and sexual violence.  Papua New Guinea has also identified, in its statement to the universal periodic review, gender-based violence and sexual violence as its major human rights challenge.[7]

   [6] Human Rights Watch, World Report 2021, Events of 2020: Papua New Guinea.

   [7] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 2.31.

3. While Papua New Guinea’s Constitution calls for equal participation by women citizens in all political, economic, social and religious activities, gender discrimination exists at all levels in Papua New Guinea and cultural barriers continue to place significant limits on the extent of female participation.[8]  Restrictions on women achieving a good education include underage marriage, unwanted pregnancies and lack of financial support.  Barriers for women in the workforce include cultural stigma against women’s education or employment, gender discrimination, nepotism, the risk of violence and sexual abuse, high levels of female illiteracy and low levels of female education.[9] 

   [8] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 3.32 – 3.33.  

   [9] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 3.38.

4. DFAT assesses that women across Papua New Guinea have a high risk of societal discrimination due to longstanding traditional values and gender roles that restrict their ability to participate fully in the community and workforce.  DFAT assesses that women are unable to participate fully in politics in Papua New Guinea due to deeply held cultural traditions and institutional restrictions, that they face a high risk of gender-based violence across Papua New Guinea regardless of their social status and that women who are subject to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.[10]

   [10] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 3.39.

5. The Tribunal finds that, if the applicant returns to Papua New Guinea now or in the reasonably foreseeable future, she faces physical and sexual assault and discrimination and cultural stigma in finding employment or undertaking further education.  The Tribunal finds that the harm feared by the applicant includes a threat to her life or liberty, significant physical harassment and significant physical ill-treatment and is serious harm within the meaning of s.91R(2).  Having regard to the range of harm feared and the high levels of violence against women in Papua New Guinea, the Tribunal is satisfied that the persecution involves systematic and discriminatory conduct as required by s.91R(1)(c). 

6. Single females without social supports are an identifiable group in Papua New Guinea on the basis that they are identifiable by a characteristic or attribute common to all members of the group, the characteristic or attribute common to all members of the group is not the shared fear of persecution and the characteristic distinguishes the group from society at large.  The Tribunal finds that single females without social supports are a particular social group in Papua New Guinea.

7. The Tribunal finds that there is a real risk the applicant faces serious harm if she returns to Papua New Guinea, now or in the reasonably foreseeable future, and that the real chance of persecution is for reasons of the applicant’s membership of the particular social group of single females without social supports in Papua New Guinea.

8. Given the prevalence of violence against women in Papua New Guinea, the Tribunal finds that the applicant could not relocate to avoid the harm feared.

9. While Papua New Guinea has laws in place to protect women, they are rarely enforced.[11]  Police are reported to be understaffed, with poor working and living conditions, low remuneration and with poor training, particularly in human rights.[12]  International human rights bodies have consistently raised issues of alleged abuse of power by the police and of the use of violence by police members.[13]  Of particular concern are reports from a 2015 survey that police members have displayed disrespect, lack of action on complaints, sexual aggression and violence including rape and the exchange of sexual favours for better treatment towards women in the community.[14]   The Tribunal finds that there is not adequate state protection available to the applicant from the harm feared and that her fear of persecution is well-founded.

   [11] Human Rights Watch, World Report 2021, Events of 2020, Papua New Guinea

   [12] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 5.6.

   [13] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 5.7.

   [14] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 5.5. 

10. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

11. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Tamara Hamilton-Noy
    Member