1712387 (Refugee)

1712387 (Refugee) [2018] AATA 923 (14 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712387
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:A B Baker
DATE:14 February 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following direction:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 14 February 2018 at 1:41pm

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Particular social group – Women in Papua New Guinea – Women who have suffered family violence – Bride price – State discriminatorily withholding effective protection – Systemic failure to enforce law – Internal relocation

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
Applicant S v MIMA (2004) 206 ALR 242
MIMA v Khawar (2002) 210 CLR 1
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] June 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Papua New Guinea applied for the visas [in] August 2015. The delegate refused to grant the visas on the basis that the primary [applicant] is not a person in respect of whom Australia has protection obligations as outlined in paragraphs 36(2)(a) or (aa). As [the primary applicant] was not owed protection obligations, the delegate further decided that the secondary applicants were also not owed protection obligations as a member of [her] family unit.
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 themselves 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.
CLAIMS AND EVIDENCE
The Applicant has not articulated a Convention ground for the harm she claims to fear in Papua New Guinea. The Tribunal accepts, however, that her claims can reasonably be seen as having a connection with the particular social group able to be defined as 'women in Papua New Guinea’ and/or ‘women in Papua New Guinea who have suffered family violence’. The Tribunal accepts that such an entity can be said to exist in Papua New Guinea as a particular social group, in the sense that it is sufficiently identifiable by characteristics or attributes common to all its members, other than a shared fear of persecution (since the act of leaving, rather than the antecedent experience of family violence is the defining characteristic) which distinguish it from society at large. The Tribunal also accepts that the Applicant can be said to be a member of such a particular social group, given her claim to have left a relationship with a violent husband.
The applicant travelled to Australia [in] February 2014, some weeks after her husband arrived [in] January 2014. She lodged the protection visa application subject to this review [in] August 2015. Her husband departed Australia [in] August 2015.
The applicant’s claims to the department of immigration are summarised as follows:
a.The applicant met her ex-husband [Mr A] in Lae Province, Papua New Guinea in September 2000. He started to become violent towards her in March 2001 when she was pregnant with her first child.
b.She continued to live with [Mr A] and they were married in 2008 but he refused to pay a bride price.
c.She and [Mr A] had four children together: [names and dates of birth listed].
d.When [Mr A] was violent it was usually after he had been drinking. At these times she would try and take her children to other family members in Lae Province, however he would follow her and abuse them.
e.[Mr A] was physically violent to her other children especially [two named children].
f.She did not report him to the police and they would not protect her and the children. Also the police can be bribed and some officers abuse females who seek their protection.
g.[Mr A] told her that she would have to move out of his house if she reported him.
h.She cannot relocated in PNG as [Mr A] would find them if they moved to Port Moresby as his family are located there. People knew who they were and would inform [Mr A].
i.[Mr A] was not violent after they arrived in Australia in 2014 as he was scared of the local locals.
j.The applicant told [Mr A] that she would follow him back to PNG after he departed in 2014 because she wanted the children to finish school.
k.The claims of the applicant’s children are the same as the applicant’s.
According to the delegate’s decision, the applicant has [specified] siblings in Port Moresby and in Lae Province. Before her arrival in Australia, she worked as [an occupation] and lived in [Town 1] in the western Highlands with [Mr A] and their children for around three years. Prior to this she lived in Lae Province since around [year].
Prior to the Tribunal hearing, the applicant provided a number of documents including the following:
a.Statement from the applicant’s [son] [Child A] stating that both the applicant and himself suffered physical violence and abuse from [Mr A] because of his alcoholism. He also states that the younger children were also physically assaulted by [Mr A]. [Child A] states that none of the children were able to attend school consistently as there was no food or water for lunch. He states that he does not believe that his father respects the applicant or any of the children.
b.Statement from the applicant’s [daughter], [named] , repeating [Child A’s] claims
c.Statement from the applicant’s [daughter], [named], also restating the claims of the previous two children.
d.Statement from [Agency 1] indicating that the applicant had attended [their support] Service between [July] 2015 and [June] 2017 on [numerous] occasions.
e.Letter of support from [Agency 1] in relation to the applicant’s claims and the level of family violence in PNG.
f.Letter from [a church] recommending the applicant as a woman of faith who is devoted to her family, genuine, sincere and of high integrity.
g.Ultrasound report dated [in] April 2016
h.Letter from [a second church’s] social worker, [named] stating that the applicant and her children have recounted to him incidents of the domestic violence suffered by the applicant and her children.
i.Statement from [a PNG agency] dated [in] October 2016 stating that the applicant had visited the welfare office in [Town 1] in 2013 several times regarding her concerns about the behavior of her husband towards her and the children.
j.Statutory declaration from the applicant stating that she was not aware that she could ask her children to provide evidence. She restated her fear of violence and death at the hands of [Mr A] should she be required to depart Australia and return to PNG. She claims to also fear for the lives of her children.
k.Statement from [the] applicant’s [relative] stating that she lived with the applicant from 2007-2009 and witnessed the physical and emotional abuse of the applicant.
l.Statement from [another agency] dated [in] July 2017 confirming that the applicant and her 4 children have received emergency relief assistance from the [agency] due to their financial hardship.
The applicant and her four children attended the Tribunal hearing and the Tribunal took evidence from her and her elder children over the course of around 3 hours. The Tribunal found their evidence to be credible and consistent under questioning. The Tribunal accepts their claims for the following reasons.
The parties told the Tribunal that [Mr A] had been violent towards the applicant and themselves their entire lives. Their evidence in relation to incidents of abusive were consistent and relevantly detailed. The Tribunal accepts that the violence as described did in fact occur.
[Child A] told the Tribunal of his fear of his father even though they remained in loose contact since he and his siblings stayed in Australia with their mother. The Tribunal accepts that children will still have some kind of relationship with an abusive parent, in [Child A’s] case, he feels safe as his father is far away and can no longer hurt him or his mother. He recounted to the Tribunal that their conversations are not particularly personal but consist largely of inquiries about general welfare. The Tribunal’s observations on this matter are consistent with the [adviser’s] submission that traumatic bonding occurs in abused children and an abuser may also be the source of reward and comfort. [Child A] shrugged his shoulders and told the Tribunal that “he’s still my father’ when it questioned why he would want to remain in a relationship with someone he had described as a “filthy cheat”.
The Tribunal accepts the reasons why the applicant did not attempt to leave her husband in the past, including whilst they were living together as a family unit in Australia. Both the applicant and her son told the Tribunal that [Mr A] had not been as violent towards them, although [Mr A] still struck [Child A] and the applicant on the back of the head from time to time, during their time in Australia. The Tribunal accepts the applicant’s explanation that she was not aware at the time that emotional, financial and psychological abuse also constitutes domestic and family violence in Australia.
Nevertheless, the applicant has sought and attended domestic violence counselling consistently since June 2015 and at least on [numerous] separate occasions. This informs the Tribunal that the violence she experienced was real and affected her such that when she had the opportunity, she sought and received appropriate help and assistance to move on with her life. The Tribunal places significant weight on this aspect of the applicant’s evidence.
The Tribunal notes that the country information available provides general background support for the applicant's claim to fear violence at the hands of her ex-husband. Among this information is a comprehensive and recent report prepared by Medecins Sans Frontières[1] which states, in part:
[1] “Return to Abuser: Gaps and a failure to protect survivors of family and sexual violence in Papua New Guinea”, Medecins Sans Frontieres, March 2016.
In Papua New Guinea, women and children endure shockingly high levels of family violence and sexual violence with rates of abuse estimated to be some of the highest in the world outside a conflict zone.
This is backed up by the experience of Médecins Sans Frontières/Doctors Without Borders (MSF), which has treated 27,993 survivors of family and sexual violence in the country since 2007.
In 2014 and 2015, some 3,056 people sought care for the first time in MSF-run family Support Centres in the capital, Port Moresby, and in Tari, in the Highlands region. Their accounts provide important insights into the patterns of intimate partner violence, family violence and sexual violence in these areas. Their experiences suggest that large numbers of people are suffering grave physical and psychological wounds in the very place they should feel the safest – within their homes and families.
The overwhelming majority – 94 percent – of these patients were female.
Most had been injured by their partners, family or community members, and in more than a quarter of all incidents involving intimate partners, the women had been threatened with death. Nearly all – 97 percent – of those patients had injuries that required treatment. Two in three had been attacked with weapons, including sticks, knives, machetes and blunt instruments.
Children are also exposed to serious violence from a very young age, MSF's data shows, most often at the hands of family members or others they know in their community. More than half of all MSF consultations for survivors of sexual violence were with children, around one in six of which were with children younger than five years. Children also made up one in three of all family violence consultations in Port Moresby, and one in eight in Tari.
Forty-nine percent of patients who sought care following sexual violence said the abuse – in most cases, rape – occurred at home. The younger the survivor, the more likely it was that they were abused at home. For most patients, the perpetrator of sexual violence was someone they knew. Again, the younger the child, the more likely this was, with a known perpetrator involved in the sexual violence against almost nine in ten children younger than five years.
Many of the patients who returned home after their consultation were in danger of experiencing further abuse. One in ten adult women reported that the latest incident of sexual violence was part of a repeated or ongoing pattern. For children, this risk was heightened, with almost two in five children experiencing repeated or ongoing sexual violence.
Family and sexual violence are clearly widespread and destructive in Papua New Guinea. This makes it all the more vital that survivors have access to free, quality, confidential treatment, in addition to services beyond medical care to keep them safe. But, at present, this is too-often not the case. Patients face multiple obstacles for obtaining essential medical and psychological care, and they face severely limited options for accessing the legal, social and protection assistance they require. They are thus made 'double victims' – suffering first from brutal attacks, and then from failures in service provision and in the protection system.
Inadequate or inappropriate responses from the country's hybrid system of formal and traditional justice, and the dysfunction of the protection system, are putting survivors' lives and health at risk. Patients' experiences expose a culture of impunity, and a continuing reliance on traditional forms of justice to solve serious family and sexual violence cases. The widespread tradition of 'compensation', whereby either money or pigs are paid to victims' families for crimes committed, means that perpetrators often remain within their communities, exposing survivors to the threat of repeated violence.
In Papua New Guinea, traditional village courts sit within the formal system and are legally not authorised to determine criminal matters such as rape or murder, which should always be referred to the district or national courts. However, district courts are located only in provincial capitals, and with more than 80% of the population living in rural areas, a journey to the police or court can mean several days of travel.
The costs, insecurity and time associated with travel create disincentives to use the formal system for some, and render it impossible for others.
The police also face their own logistical and budgetary barriers to enforcing the law in remote areas – due to shortages of fuel or vehicles or reluctance to travel to areas with little government presence where police are not welcome.
However, survivors' stories reveal that these logistical barriers are merely one factor in the complex, interconnected reasons for the continuing under-reporting of violence against women and children and the strong reliance on the village court system, including for serious domestic and sexual crimes A lack of legislative protection and support, combined with a general lack of confidence in the police and formal justice system, also contribute to the under-reporting of family and sexual violence.
Survivors need dedicated spaces within police stations for trained officers to respond to family and sexual violence cases in an appropriate, sensitive and effective manner. However, while family and sexual violence Units were created for this purpose, some provinces still do not have any (14 provinces out of 22 have established Family and Sexual Violence Units) with a total of only 17 for the whole country.
In addition, Papua New Guinea's entire police force is understaffed. The UN recommends a ratio of 1 to 400 police officers to the population, but in PNG it is three times lower, at 1 to 1200. Furthermore, stories from survivors reveal that police officers outside the Family and Sexual Violence Units and Sexual Offences Squad remain under-trained or under-committed to deal appropriately with this type of violence.
Incidents of police misconduct also fuel distrust in the formal justice system, leading to continued disengagement from reporting and pursuing criminal proceedings. In the last three months of 2015 alone, 41 officers in the capital, Port Moresby, were suspended on misconduct charges, while more than 1,600 complaints of police abuse were reported over a seven year period.
Many survivors of family and sexual violence have told MSF staff that their dealings with police were met with apathy or dismissive attitudes, at best, and with corruption, aggression and even violent abuse, at worst.
It is telling that one in ten adult women – 10% (13/129) – who sought treatment in the Port Moresby centre following sexual violence in 2014 and the first six months of 2015 reported that the perpetrator was a member of the police or military.
Even when police do follow up a case and it makes it to court, the prosecution of perpetrators remains ad hoc, as shown by statistics from Lae, Morobe province, where the probability of a sexual violence case involving a female being successfully prosecuted was just 1 in 338, while one involving a child was 4 in 192
The barriers to seeking protection through the official legal system contribute to a continuing reliance on village court culture. Papua New Guinea's 'wantok system' promotes a communal culture with a strong preference for dealing with issues within the clan or community internally, rather than through government-enforced national laws. So, although domestic violence was classified as a criminal offence under the 2013 Family Protection Act, it continues to be viewed by many as a private matter to be handled within the family or by traditional community compensation mechanisms.
Village courts often rely on an approach that prioritizes continuing wantok group unity over survivors' needs. The widespread culture of 'compensation', whereby money is paid to victims' families for crimes committed, means that perpetrators of family and sexual violence often evade imprisonment and any official recognition of their violence as a criminal act.
Such rulings fail to protect the survivor, or others, from further violence and harm, as the perpetrator is free to return to the community where the victim lives. The compensation approach also reduces incentives to make complaints against perpetrators who come from the same family or clan as the victim – which is the reality for all survivors of intimate partner violence and almost half the survivors of sexual violence treated by MSF.

The United States State Department's current report on human rights practices in Papua New Guinea states, in part:
The law criminalizes intimate-partner violence, but it nonetheless persisted throughout the country and was generally committed with impunity.
Since most communities viewed intimate-partner violence as a private matter, few survivors reported the crime or pressed charges, and prosecutions were rare. The law also gives legislative backing for interim protection orders; allows neighbours, relatives, and children to report domestic violence; and gives police the power to remove perpetrators from their homes as a protective measure. Implementation of the law remained incomplete…
Traditional village familial networks, which sometimes served to violence, were weak and largely absent when youths moved from their villages to larger towns or the capital. According to Amnesty International, approximately two-thirds of women in the country were struck by their partners, with the number approaching 100 percent in parts of the Highlands. The NGO reported there were only three shelters for abused women in Port Moresby, all privately run, which were often at full capacity and had to refuse women interested in counseling and shelter. The situation was worse outside the capital, where small community organizations or individuals with little access to funds and counseling resources maintained the shelters.
Violence committed against women by other women frequently stemmed from domestic disputes. In areas where polygyny was customary, authorities charged an increasing number of women with murdering another of their husband's wives.
Independent observers indicated that approximately 90 per cent of women in prison were convicted for attacking or killing their husbands or another woman.
Other Harmful Traditional Practices: Customary bride price payments continued to increase. This contributed to the perception by many communities that husbands owned their wives and could treat them as chattel…
Although the law provides extensive rights for women dealing with family, marriage, and property disputes, gender discrimination existed at all levels. Women continued to face severe inequalities in all aspects of social, cultural, economic, and political life. Some women held senior positions in business, the professions, and the civil service, but traditional and deep-rooted discrimination against women persisted. Women, including in urban areas, were often considered second-class citizens.
Village courts tended to impose jail terms on women found guilty of adultery while penalizing men lightly or not at all. The law requires district courts to endorse orders for imprisonment before imposing sentences, and National Court justices frequently annulled such village court sentences. Polygyny and the custom in many tribal cultures of paying a “bride price” tended to reinforce a view of women as property. In addition to being purchased as brides, women sometimes were given as compensation to settle disputes between clans, although the courts have ruled that such settlements denied women their constitutional rights.[2]
[2] “Papua New Guinea – Country Report on Human Rights Practices 2015”, US Department of State, 13 April 2016.
Other reporting[3] supports a conclusion that rates of domestic violence are very high in Papua New Guinea, with as many as 70 per cent of women experiencing family or sexual violence at least once in their lifetime.
[3] See for example, “Papua New Guinea 2015 Human Rights Report”, United States Department of State, April 2016; “Domestic Cruelty: The Violent Scourge of Papua New Guinea”, ABC March 2016; “Women seek islands of refuge in Papua New Guinea’s sea of violence”, Guardian (Australian Edition) March 2016; “Bashed up: Family Violence in Papua New Guinea”, Human Rights Watch, November 2015.
While there have been some recent measures to improve the responses of the police and the judicial system to these problems, effective state protection is largely absent. There is evidence of unwillingness on the part of the police, particularly in rural areas but also to some extent in Port Moresby and other major population centres, to regard domestic violence against women as a suitable matter for official action and a tendency to dismiss complaints or abet the offender. The judicial system, in particular at village level, has demonstrated a general inability or unwillingness to penalize the few offenders who are charged and brought before the courts.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant, and her children, are owed protection obligations by Australia. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal has accepted that both the applicant and the applicant’s elder children have suffered violence from [Mr A] in the past. The Tribunal accepts that they suffered violence on numerous occasions and that this continued over a period of some years.
The Tribunal has had regard to the fact that violence against women is common in PNG. The applicant has suffered violence from [Mr A] in the past. Her evidence, which the Tribunal accepts, is that [Mr A] lives in Lae which is where his family lives. He has displayed a clear propensity for violence. The Tribunal has received corroborating evidence of this which it accepts. The applicant and her elder children maintain that [Mr A] would seek them out and continue to try and harm them, regardless of the fact that he is in a new relationship, should they return to PNG, because he considers them his property and because they have tried to escape him.
In all the circumstances, the Tribunal accepts that there is a real chance, looking to the reasonably foreseeable future that [Mr A] would again seek to harm the applicant and the applicant’s children as he has done in the past. The Tribunal finds that there is a real chance that the applicants will be seriously harmed by [Mr A] if they were to return to PNG and that the state would not and could not protect them.
The Tribunal is satisfied that there is a real chance that the applicants would be discriminatorily denied protection against harm for a Convention reason. The leading case on this point is MIMA v Khawar (2002) 210 CLR 1. In that case, the High Court confirmed that the Convention test may be satisfied by the selective and discriminatory withholding of State protection for a Convention reason from serious harm that is not Convention related.
Chief Justice Gleeson was of the view that persecution may result from the combined effect of the criminal conduct of private individuals and the State or its agents; and that a relevant form of State conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the State has a duty to provide protection against such harm. His Honour stated (at [30] – [31]):
Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm. As was noted earlier, this is not a case in which it is necessary to deal with mere inability to provide protection; this is a case of alleged tolerance and condonation…
Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.
Chief Justice Gleeson considered that it would not be sufficient to show maladministration, incompetence, or ineptitude, by the local police, but if an applicant could show State tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then persecution may be made out (at [26]).
According to Kirby J, persecution necessarily involves two distinct elements: serious harm and a failure on the part of the State to afford adequate protection. Adopting the formula “Persecution = Serious Harm + The Failure of State Protection”, his Honour concluded that persecution is a construct of the two separate but essential elements of serious harm and failure of protection (at [120]). His Honour stated (at [121]):
[E]ven if the Tribunal in the present matter were of the opinion that one ingredient in the Convention definition of persecution, namely the family threats and violence against the respondent by non-state actors, was not (as it concluded) committed for reasons of the respondent's actual or perceived membership of a particular social group, that would not be an end of the matter. If the respondent could show that her well-founded fear of being persecuted was "for reasons of" her being a member of a particular social group because state protection was unavailable to her, that would be enough to meet the Convention requirement.
Justices McHugh and Gummow identified the relevant persecution as the discriminatory inactivity of State authorities in not responding to the violence of non-State actors. Their Honours emphasised that the reason for the persecution must be found in one or more of the five Convention attributes, stating:
84                   It should, in our view, be accepted that, whilst malign intention on the part of State agents is not required , it must be possible to say in a given case that the reason for the persecution is to be found in the singling out of one or more of the five attributes expressed in the Convention definition, namely race, religion, nationality, the holding of a political opinion or membership of a particular social group. If the reason for the systemic failure of enforcement of the criminal law lay in the shortage of resources by law enforcement authorities, that, if it can be shown with sufficient cogency, would be a different matter to the selective and discriminatory treatment relied upon here.
85                   That selective and discriminatory treatment, if shown on facts found by the Tribunal, would appear to answer Mason CJ's criterion mentioned in Chan of harm amounting to persecution by denial of a fundamental right otherwise enjoyed by Pakistani nationals, namely access to law enforcement authorities to secure a measure of protection against violence to the person…
87                   Secondly, and this is crucial for the basis propounded above, the persecution in question lies in the discriminatory inactivity of State authorities in not responding to the violence of non State actors. Thus, the harm is related to, but not constituted by, the violence. It is for this reason that it has been unnecessary to consider whether the "accountability" theory mentioned in Haji Ibrahim and reflected in the Minister's submissions on this appeal should be accepted.
The Tribunal is satisfied, firstly, that the applicant is a member of the particular social group constituted by “females in Papua New Guinea”. The concept of “particular social group” was considered by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Applicant S v MIMA (2004) 206 ALR 242, where, after reviewing statements made in Applicant A, they stated (at [36]):
The determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A , a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.
Having regard to independent information relating to the situation for women in PNG, the Tribunal is satisfied that females in PNG constitute a particular social group. The group is identifiable by a common characteristic, namely gender. The characteristic common to all members of the group is not a shared fear of persecution. The Tribunal is satisfied that the possession of that characteristic distinguishes the group from society at large.
Notwithstanding that PNG law now criminalises domestic violence, the independent information points to a failure by the relevant authorities to enforce the law. The Tribunal is satisfied in all the circumstances that this constitutes a discriminatory denial of state protection. In this regard, the Tribunal notes that the Special Rapporteur’s report indicates that it is a common experience that reports to the police are not taken seriously. The Special Rapporteur referred to numerous accounts of police officers ignoring complaints, dismissing women from police stations, encouraging women to drop orders, not enforcing interim protection orders or receiving bribes from perpetrators to ignore a case. The US Department of State has referred to widespread sexual violence committed by police officials and indicated that the unresponsiveness of those officials to complaints of sexual or domestic violence deterred reporting. Based on all the available evidence, the Tribunal accepts that there is a widespread and systemic failure to properly protect women and girls in PNG from violence. This is the case notwithstanding laws criminalising domestic violence.
The Tribunal finds that the applicant, as a female in PNG, would face a systemic and discriminatory failure by agents of the PNG state to properly enforce the law. Looking to the reasonably foreseeable future, it finds that there is a real chance that the applicant would be discriminatorily denied state protection against serious harm at the hands of non-state agents for reason of membership of the particular social group of “females in PNG”. It accepts that her (and her daughters) membership of the relevant particular social group would constitute the essential and significant reason for the withholding of state protection. The Tribunal finds that this would be systematic and discriminatory because it is targeted at females in PNG in particular.
The Tribunal has considered whether it would be reasonable to expect the applicants to relocate in order to avoid the harm they fear.
The Tribunal accepts that the applicant is from Lae and does not have close relatives or supports in other parts of PNG. The applicant is a victim of domestic violence. Independent evidence indicates that there are high rates of violence against women in PNG generally. The applicant has three young daughters and a son for whom she would also have to provide and who would also be vulnerable in the absence of established support networks. In all the circumstances, the Tribunal finds that it would not be reasonable to expect the applicants to relocate in order to avoid the harm they fear in Lae or Port Morseby.
The Tribunal finds that the applicant has a well-founded fear of being persecuted in PNG for reason of membership of the particular social group of females in PNG.
There is nothing to suggest that the applicants have a right to enter and reside in any third country such that they would be excluded from Australia’s protection by s.36(3) of the Act.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the following direction:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
A B Baker
Senior Member

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.
…

[2018] AATA 923

14 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction