1722400 (Refugee)

[2022] AATA 3565

1722400 (Refugee) [2022] AATA 3565 (28 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722400

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Tamara Hamilton-Noy

DATE:28 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named and third named applicants satisfy s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy 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 28 July 2022 at 8:08am

CATCHWORDS

REFUGEE – Protection Visa – Papua New Guinea – conflict with another female – membership of the particular social groups – women perceived to have committed adultery – prevalence of violence against females – harm feared is systematic and discriminatory – member of the same family unit as the applicant – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 91, 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 dependant.

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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The fourth named applicant [name deleted] (the applicant husband) first arrived in Australia on [date] February 2011 on a student visa.  He departed Australia on [date] January 2012 and returned to Australia on [date] February 2012.

3. The first named applicant (the applicant), second named applicant, third named applicant and fifth named applicant arrived in Australia on [date] April 2012 on student visas and have not departed Australia since this time.

4. The applicants lodged an application for protection on 4 March 2013.

5. On 16 September 2014, a delegate of the Department found that the applicants were not owed protection.

6. The applicants made an application to the Administrative Appeals Tribunal for a review of that decision.  On 10 February 2017, the Tribunal (differently constituted) affirmed the decision not to grant the applicants a protection visa.

7. The applicants appealed that decision to the Federal Circuit Court and [in] September 2017, the Court by consent ordered that the matter be reheard by the Tribunal.

   Claims and Evidence

   Evidence before the Department

8. In her written protection application, the applicant stated she was born in [Town 1], Eastern Highlands Province and that the applicant husband was also born in [Town 1].  The applicant stated that her husband had left Papua New Guinea on [date] February 2011 and had come to Australia to study.  Prior to his leaving, a woman had falsely accused the applicant of having an affair with her husband.  The woman mobilised with family members and attacked the applicant with stone, an iron rod and anything they could lay their hands on.  The applicant’s head was smashed with an iron rod and she was told this was a first lesson and there was more to come.  The applicant was rushed to the hospital for treatment.  In the same year, 2011, the applicant was pregnant and took her two children to her brother’s.  In January 2012 her husband returned to Port Moresby and they organised documents and then flew to Melbourne on [date] April 2012. 

9. As to whether she had experienced harm in Papua New Guinea, the applicant in her written claim stated that on several occasions the woman had argued and fought with her.  On [date] February 2010, the woman had teamed up with family members and attacked the applicant.  The applicant was wounded on the head by an iron rod and became unconscious.  Her body was covered with bruises and she had a 10cm wound on her head which received 12 stitches.  Two months later, [in] May 2010, the woman attacked her again and smashed window glasses and windscreens. 

10. The applicant stated that, if she returns to Papua New Guinea, she fears the woman has a strategy to kill her and may use a knife to stab her.  The applicant stated that the woman is waiting for her to return to Papua New Guinea and the incident will continue until the applicant is dead.  The police are corrupt and bribery is high within the police force. 

11. The applicant stated that the authorities will not protect her because the authorities are corrupt, the natives on the land are living in poverty and are struggling for survival.  The applicant noted she had attached a document to her claims entitled ‘Violence against women in Papua New Guinea’.  The applicant stated that, because of the law and order problem, the Australian government initiated an Enhanced Cooperation Program in 2004, with civilians sent to assist Papua New Guinea’s law and justice sector.  In September 2004 law enforcement arrived to assist, but were withdrawn in 2005 following a Supreme Court decision.  Bribery is common and this is what happened to the applicant; when the woman assaulted her and was locked up, she would bribe the police on duty.

12. In addition to identity documentation the applicant provided to the Department, the applicant provided photos of herself and other women; documents relating to crime reports dated [February] 2010, [November] 2012, [December] 2020; a police letter dated [December] 2012; a crime report relating to information given [in] November 2012 by the applicant; medical reports dated [February] 2010 and [August] 2010; a motor vehicle inspection report 10 June 2010; photos of a car with the windscreen damaged; a statutory declaration dated 3 September 2014; and photos and media reports relating to violence against women in Papua New Guinea.  Also contained on the Department documents was a ‘Medical examination for an Australian visa’ form dated 17 January 2013 (‘[deleted] – reported injury during childhood’).

13. The applicant attended an interview with the Department on 30 April 2013.  The Tribunal had access to a recording of the interview, the relevant parts of which are referred to further below.  Following the interview, written questions were put to the applicant by letter dated 13 August 2014.  The applicant provided a written response to the Department’s questions on 12 September 2014.

14. A delegate of the Department noted that they had concerns about the quality of the interpreting during the interview and, in consequence, had given little weight to the information provided in the interview unless the applicant was given the opportunity to comment on that matter in her written response following the interview.  The delegate accepted that the applicant’s head had been hit, her finger severed and her family’s car windows smashed, but did not accept that the photos provided by the applicant established that these events had occurred at the time or for the reasons she claimed. The delegate accepted that, while it is possible that original police reports may have been lost when the applicant moved house, it did not explain why she had been unable to provide police reports or court documents issued in 2010.  The delegate found that a police report dated [December] 2012 listed the applicant as complainant and as having provided the information and that the applicant was in Australia at that time; the applicant’s explanation that her brother or nephew went to the station did not explain why she was listed as having provided the information.  The delegate had concerns that the applicant had not mentioned an assault in December 2010.  The delegate found that police documents provided by the applicant were fabricated based on inconsistencies in the documents.  The delegate found that medical reports provided by the applicant provided contradictory information about the dates she was injured and the nature of her injuries.  The delegate accepted the applicant may have been attacked in February 2010 but did not accept that subsequent attacks had occurred. The delegate found that the applicant’s delay in lodging a protection visa application raised further concerns about the credibility of her claims.

15. The delegate found that the applicant did not fear harm for a Convention reason and would not be denied protection for a Convention reason and found that the applicant was not a refugee.  The delegate found that the applicant was not owed complementary protection because the applicant’s ability to remain in Papua New Guinea for two years after the attack in February 2010 suggested that the assault was a one-off or that the matter was resolved.  The delegate was not satisfied the applicant faced a real chance of significant harm if returned to Papua New Guinea. 

    Previous AAT decision and Federal Court remittal

16. The applicants have made a previous application to this Tribunal.  On 10 February 2017, the Tribunal (differently constituted) found that the applicants were not owed protection.  The Tribunal accepted the applicant may have been assaulted [in] February 2020 by [Ms A].  The Tribunal had some doubt that [Ms A] had accused the applicant of having an affair with her husband and had concerns about the credibility of the applicant’s evidence and about the documents the applicant provided regarding police reports.  The Tribunal did not accept the applicant was attacked by [Ms A] with a piece of iron, that she lost her finger in an assault by [Ms A] or that she was assaulted by [Ms A] in May 2010, August 2010 or December 2010.  Given the passage of time, the Tribunal did not accept the applicant faced a real chance of serious harm, harm from [Ms A] or [Ms A]’s relatives in Papua New Guinea or that she faced a real risk of significant harm from [Ms A] or [Ms A]’s relatives.    

17. The applicants appealed this decision and [in] September 2017, the Federal Circuit Court remitted the matter on the basis that the Tribunal had failed to take into account a record of the applicant’s attendance at [Hospital 1] on [date] December 2010 in relation to her claims.

    Evidence before this Tribunal

18. On 13 July 2021, the Tribunal wrote to the applicants stating that it had considered all of the material before it but was unable to make a favourable decision on that information alone.  The applicants were invited to attend a hearing at the Tribunal’s Melbourne Registry on 9 August 2021.

19. On 6 August 2021, the Tribunal wrote to the applicants stating that, given the ongoing lockdown in Melbourne, the in person hearing would be unable to proceed.  The Tribunal sought submissions as to whether conversion of the hearing to a video hearing would be appropriate. 

20. On 6 August 2021, the applicant’s representative wrote the Tribunal stating that the applicants did not have the technology to participate in a video hearing.  On the same date the Tribunal wrote to the applicants confirming that the hearing would be rescheduled.

21. On 9 March 2022, the Tribunal wrote to the applicants inviting them to a hearing on 20 April 2022. 

22. The applicant’s representative provided written submissions and statements prepared by the applicant and applicant husband to the Tribunal on 15 April 2022, relevant parts of which are referred to further below.  

23. The applicants attended the Tribunal’s Melbourne Registry on 20 April 2022.  The hearing could not proceed on this date on the basis that the applicants and the interpreter were known to one another.  The Tribunal adjourned the hearing to a further date.

24. On 26 April 2022, the applicants were invited to a resumed hearing on 3 May 2022.

25. The applicant and applicant husband attended the hearing on 3 May 2022 and were represented at the hearing.  The Tribunal was assisted during the hearing by a Pidgin interpreter.

26. On 9 May 2022, the applicants were invited to a resumed hearing on 31 May 2022.

27. The applicant and applicant attended the hearing on 31 May 2022 and were represented at the hearing.  The Tribunal was assisted during the hearing by a Pidgin interpreter.

28. Following the hearing, the applicants’ representative was given time to make further written submissions.  Nothing further was received from the applicant’s representative during the deferral period and no further submissions have been received at the date of this decision. 

    The relevant law

29. 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

30. 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).

31. 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.

32. 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.

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

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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

40. 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’).

41. ‘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.

42. 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

43. 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.

    Member of the same family unit

44. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. Regulation 1.05A(2) states that a person is dependent on another person for the purposes of an application for a protection visa if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

    Assessment, Reasons and Findings

1. The applicants travelled to Australia on Papua New Guinean passports and have at all times maintained they are citizens of Papua New Guinea.  The Tribunal hearing was conducted with the assistance of a pidgin interpreter.  The Tribunal accepts that the applicants are citizens of Papua New Guinea and has assessed their claims against Papua New Guinea as their country of nationality.  The Tribunal finds that the applicants do not have a right to enter and reside in any third country.

2. The applicant’s evidence about her background was consistent with her written claims.  The Tribunal accepts that the applicant was born in [Town 1], Eastern Highlands Province.  The Tribunal accepts the applicant was married to the applicant husband at [age] years of age and that they moved to Port Moresby after they were married because the applicant husband was working there.  The applicant gave evidence of having dropped out of school in [specified grade] due to tribal conflict over land and described a tribal fight in which her brother was killed and put ‘on display’ for other villagers, following which her family moved to Port Moresby to avoid the tribal conflict.  The applicant stated that her parents are deceased, her brother lives in Port Moresby and her sister is married and is also in Port Moresby.  The Tribunal accepted this evidence as correct.

3. The applicant husband gave evidence at hearing that he was born [in] the Eastern Highlands, that he attended school and [college] and that he then worked in Port Moresby in 1992, as a [occupation], and lived there for around 20 years before departing for Australia.  The applicant husband gave evidence that his parents reside in Port Moresby and that he has [siblings] who also reside in Port Moresby.  He stated to the Tribunal that that family’s land in the Eastern Highlands is being used by his cousins and that he owns the house that his family is living in in [Town 2], Port Moresby.  The Tribunal accepted this evidence as correct.

4. The applicant and applicant husband both gave evidence that they had been married in a customary marriage in 1996 and that they have three children with them in Australia and that their daughter [remains] in Port Moresby with the applicant wife’s brother.  The Tribunal accepted this evidence and accepted that all children were born in Papua New Guinea.

5. The applicant has consistently claimed to have left Papua New Guinea because of conflict with another female – [Ms A] – who the applicant claims had falsely accused the applicant of having an affair with [Ms A]’s husband.  At hearing, the claims the applicant advanced related to four incidents she claims occurred.  Her evidence at hearing about the dates on which they occurred was given in an unclear manner, although her previous written evidence states that the incidents in question occurred in February 2010, May 2010, August 2010 and December 2010. The applicant husband also gave evidence to the Tribunal about these four claimed incidents, stating to the Tribunal that he was present for all four incidents.

6. The applicant claimed at hearing, and has claimed consistently, that the conflict with [Ms A] arose because [Ms A] accused the applicant of sleeping with her husband.  The applicant gave evidence at hearing that she had not had a relationship with [Ms A]’s husband and that [Ms A] had accused her of this because she had been jealous of her.  She gave evidence that she had been residing in [Town 2] at the time and [Ms A] had been living in Port Moresby, some [time] away on a bus. As to how she would come to [Ms A]’s attention, the applicant stated that [Ms A] would see her when she went into town, for example, to the market.

   Claims relating to an attack in February 2010

7. The applicant gave evidence at hearing that the first time [Ms A] attacked her she was at home by herself as her husband was at work and her family was at the market.  She stated that [Ms A] had come and started screaming at her and that [Ms A] and [Ms A]’s family had assaulted her.  She confirmed her evidence to the Tribunal that she had been home on her own at the house in [Town 2] as her husband was at work.  She stated that [Ms A] was screaming at her, picked up stones and sticks, that she ran away, and that [Ms A] and her family were abusing her. The Tribunal asked whether she was injured in this incident and the applicant stated she was, that [Ms A] must have bit her back with her teeth, and she got a stick and hit her on the back as well.  She stated she bit her on the back of the left hand which causes bruises. 

8. The Tribunal asked the applicant whether she had attended a doctor or the hospital and she stated she had gone to the hospital but was also taking Panadol.  The Tribunal asked which hospital she had gone to and she then stated she didn’t go to hospital, she stayed home and took Panadol.  The Tribunal observed that she had given evidence that she had gone to hospital, and the applicant then stated that she went to [a] clinic and ‘forgot’; she thinks she saw a male doctor but it is a long time ago and she can’t remember the details.  The doctor gave her pain medication and told her she would be alright.  She stated she had made a police report after the incident.

9. The Tribunal observed that the applicant had not previously raised in her claims that [Ms A] had bitten her and she stated in response that so many things have happened and she just remembered it so is bringing it up now. 

10. In contrast to this evidence, at hearing the applicant husband told the Tribunal that he had been with the applicant when the February 2010 attack at home occurred, and that he was in the house getting ready to go to work when the applicant was attacked.  He gave evidence that he had taken the applicant to [a] hospital, that the applicant had been attacked with an iron pipe and that her head had been split open. 

11. Also in contrast to the applicant’s evidence, in her written statement in support of her protection application, dated 1 August 2016, the applicant stated that in February 2010 [Ms A] had attacked her at home, had beaten her and hit her over the head with a metal rod, that she was taken to [the] hospital and required 12 stitches in her head and that the applicant husband was also beaten in the attack. 

12. Also in contrast to the applicant’s evidence, at the Department interview the applicant had stated to the interviewer that in February 2010 her husband and father were way and she was working in the garden, where [Ms A] assaulted her with an iron bar and she required stitches in her head.  She stated that she had made a police report and had required stitches at the hospital and a report had been made at the hospital.  

13. The applicant had provided a photo of her head to the Department with a large cut and stitches across it, which the Tribunal noted was not dated. 

14. The applicant had also provided a ‘Medical Report Form’ dated 12 February 2010 from [Hospital 1] which stated that the applicant was assaulted by a woman and had a deep cut to the upper parietal area of her head, and reported to have been hit with a heavy iron rod.  The report noted there was profuse bleeding from the open laceration with shock, dizziness and generalised haematoma. The treatment was stated to be tetanus and 12 stitches to the wound applied under local anaesthetic, with oral medication given as well.

15. Further, the applicant provided a ‘Crime Report Application Form’ to the Department dated 12 February 2010, stating that the report was prepared at [a location], and the nature of the offence ‘[Ms A] has accused [the applicant] of having an affair with her husband and attacked [the applicant] and smashed all the window glasses of their car’.    

16. The Tribunal noted during the hearing that it had concerns about the applicant’s evidence relating to the claimed February 2010 attack.  The Tribunal noted that the applicant had raised for the first time at hearing that [Ms A] had bitten her on the back and on the left hand.  The applicant stated in response that there were so many things to write down and she left some out. 

17. The Tribunal also noted during the hearing that the applicant had said she was at home alone during the February 2010 incident whereas the applicant husband had given evidence that he was also there as well, and that this also caused the Tribunal doubt that the incident had occurred.  The applicant stated to the Tribunal that the applicant husband had been there but had been getting ready for work. 

    Claims relating to an attack in May 2010

18. The applicant gave evidence at the Tribunal hearing that, after the February incident, the next time [Ms A] confronted her was at [Suburb 1]’s market where she hit the applicant over the head.  The applicant stated that she was at the market with her husband and the children and that she sustained a deep cut on her head and blood on her clothes.  She stated that the applicant husband drove her to [Suburb 1]’s police station to make a report and then drove her to the hospital to have her head stitched.  She stated that no one else was injured in the attack. She stated that [Ms A] was charged over the incident but did not show up at court.  She stated that [Ms A] had hit her over the head twice, in the same spot, and that after this second incident her family and the applicant husband’s family had attempted to meet [Ms A]’s family but [Ms A] was against this.

19. In contrast to this evidence, in her written statement dated 1 August 2016, the applicant stated that in May 2010 [Ms A] attacked her, bashed her, smashed the windscreen and car windows and that the applicant was with her mother at the time and they were both beaten badly and suffered black eyes.  She stated that they had been taken to [Suburb 1]’s Hospital.

20. Also in contrast to this evidence, at the previous hearing, the applicant gave evidence that [Ms A] was at court [in] May 2010 and was ordered to pay a fine, following which she stormed out of court and smashed the window of the applicant’s car, that the applicant had tried to get help from the police but was unable to do so because [Ms A] must have bribed the police. The applicant gave evidence at the previous hearing that she and her mother then went to the police station next door to the court and that [Ms A] assaulted her and her mother and gave her a black eye and broke her mother’s arm, that the police locked [Ms A] in a room and that [Ms A] was required to attend court again in August 2010. 

21. Also in contrast to this evidence, at the Department interview the applicant told the interviewer that [Ms A] had come to the house a second time and the applicant’s mother tried to help and they knocked her down, and [Ms A] said she would come back again and again. 

22. The applicant provided a Royal Papua New Guinea Constabulary letter dated [December] 2012 to the Department, which stated that [in] May 2010 [Ms A] and her relatives had assaulted the applicant and had smashed the front and rear windscreens of a vehicle. 

23. The Tribunal noted its concerns about the applicant’s evidence during the Tribunal hearing.  The Tribunal noted that the applicant had given evidence to this Tribunal about the second attack by [Ms A] occurring at [Suburb 1]’s market, but that she had told the previous Tribunal that the second time she was attacked was at court.  The applicant stated that it did happen and it was outside the court when [Ms A] cut her finger.

    Claims relating to an attack in August 2010

24. The applicant gave evidence to the Tribunal that [Ms A] had confronted her in front of the court house, and that [Ms A] had broken her arm in front of a policeman, hit her, broke the windows on her car and tore her clothes apart, after the court hearing had concluded.  She stated that her whole family and [her husband]’s family was with her.  When asked who in her family had been present, she stated that it was her big brother and her nieces and nephews; her parents were not present as they were in [Town 1].  She stated that [her husband], his parents and his brother and sister had also been present.  The Tribunal asked the applicant about her arm being broken by [Ms A] and she stated it was her left hand, that she had tried to stop a fight and that [Ms A] had cut her with a knife, and that she was the only person who was injured.  Later in her evidence at the hearing, she said that on this occasion [Ms A] had also hit her over the head for a second time.  Later in her evidence to the Tribunal, she stated that the second time [Ms A] had hit her over the head she had been at [Suburb 1]’s market, when [Ms A] had an iron in her hand. 

25. The applicant husband gave evidence to the Tribunal at hearing that he had been presented for the August 2010 attack outside the court house where [Ms A] hit the applicant with an iron bar again, where the applicant lost her finger and where the windscreen of his car was smashed. 

26. In contrast to this evidence, at the Department interview the applicant told the interviewer that the third time she was attacked by [Ms A] it was outside the court house when [Ms A] had ‘made a court case against her’.  The matter was adjourned, they went out and that is when [Ms A] attacked her with an iron bar.

27. The applicant provided to the Department a letter prepared by the Royal Paua New Guinea Constabulary dated 6 December 2012 which stated that [Ms A] had attacked the applicant on [date] August 2010 with a piece of iron rod at Port Moresby police station after a court case, as a result of which the applicant had suffered a fractured left arm. 

28. The applicant provided to the Department a ‘Medical Report Form’ dated 12 August 2010 which stated that the applicant was hit with an iron pipe on the left hand on [date] August 2010, that the left hand was swollen and had loss of function, that an X-ray had found no fracture and that the applicant had been prescribed oral medication.  The report noted that the injury involved joints and that the applicant may develop osteoarthritis in the near future. 

29. At the Tribunal hearing, the Tribunal noted it had concerns about the evidence given by the applicant about the claimed August 2010 incident.  The Tribunal noted during the hearing that the applicant and applicant husband had both stated that [Ms A] had cut the applicant’s finger off in an attack.  The Tribunal noted that, on the Department documents, there was a record of a medical examination from 2013 in which the applicant is reported as having stated that the applicant lost half of her finger from a childhood injury.  The Tribunal also noted that the August 2010 medical report provided by the applicant to the Department had talked about her hand being swollen and of a loss of function, but did not refer to her finger being cut off and that it would expect this to be referred to if it had happened at that time.  The Tribunal noted that these matters caused the Tribunal to doubt that the applicant was attacked during 2010 by [Ms A] during which time her finger was cut off by [Ms A].  The applicant stated in response that it is true that [Ms A] hit her and cut off her finger and she had not felt good telling the medical officer this.

    Claims relating to an attack in December 2010

30. In the applicant’s written statement, dated 1 August 2016, she raised claims not previously raised about a fourth attack by [Ms A].  In her statement, the applicant stated that [in] December she had gone to the market with her husband and [Ms A] had seen them there, that [Ms A] had struck her on the head again and split her head open, that she collapsed from blood loss and was rushed to [Suburb 1]’s Hospital.

31. The applicant was asked at hearing about any other assaults by [Ms A] after the assault at the court house.  She gave evidence of [Ms A] having assaulted her twice outside the court house and of not going out much after that, and having moved to [an area] to stay with her brother after the incident at the court house.  The Tribunal observed that she had previously claimed she saw [Ms A] again in December 2010 and the applicant stated she cannot remember now.  The applicant husband gave evidence at the Tribunal hearing that the applicant was at the market and [Ms A] hit her on the head again in the same spot and that he was present for this. 

32. At the Department interview, the applicant told the interviewer that she had not seen [Ms A] again since the court case and that she had lived with her brother until she travelled to Australia.

33. In contrast to this information, at the previous Tribunal hearing the applicant had told the Tribunal that [Ms A] had attacked her [in] December 2010 at [Suburb 1]’s market when she was with her husband, that [Ms A] had bashed her from the back and at the front, that she had been unconscious and that her husband had taken her to hospital.  She gave evidence at the previous hearing that she had not reported the assault to the police as [Ms A] had not complied with the law and her previous complaints had made the situation worse. 

34. The Tribunal noted that a fourth incident was not outlined in a letter prepared by the Royal Papua New Guinea Constabulary dated [December] 2012.

35. The applicant provided to the Department a ‘Medical Report Form’ dated 12 December 2010 which stated that the applicant was examined due to a deep cut to the scalp which was sutured ‘a week ago’, that the cut was 10 cm long and 2 cm deep and was attacked using an iron bar.  The report stated that the applicant had sustained deep lacerations on her scalp, that she was week and dizzy, unable to sit up and was bleeding heavily and that she was given medication for treatment. 

36. The applicant also provided to the Department a ‘Crime Report’ which stated that the applicant had given information to the Police on 19 November 2012 about an offence [in] December 2010.  The offence was recorded to be a serious assault and damage to property committed between 10am and 12 noon [in] December 2010.  The details of the offence were reported to be that ‘complainant was assaulted in her home by suspect namely [Ms A] with a iron rod causing a deep cut to her head.  The moto[r] vehicle was also damaged (front and back windscreen)’.

37. The Tribunal put concerns to the applicant during the hearing about her claims relating to the December 2010 assault.  The Tribunal noted that the applicant had not raised in her protection claims that there had been a fourth assault.  The Tribunal noted that, in the previous Tribunal hearing, the applicant had given evidence that she had been attacked at [Suburb 1]’s market; that a crime report had stated she was assaulted in her home; and that a police letter had not mentioned that there had been a fourth assault in December 2010.  The Tribunal noted that these matters caused the Tribunal to doubt that the applicant had been assaulted by [Ms A] in December 2010.  The applicant stated in response that it is true, that [Ms A] split her head open and that this last incident occurred at [Suburb 1]’s market.

38. The Tribunal also observed that the applicant had told the previous Tribunal that the damage to the car had occurred in the May 2010 attack, whereas she had provided a crime report dated 12 December 2010 stating that the motor vehicle had been damaged in December. The applicant stated that the car windows had been broken in May 2010 and she was confused about the dates. 

    Findings about the claimed attacks by [Ms A]

39. In assessing the claims of the applicant, the Tribunal accepts that, ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[1]  However, the benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility.  The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[2]

    [1] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

    [2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204.

1. The Tribunal is mindful of the difficulties faced by applicants, including nervousness in a Tribunal environment and stress caused by separation from home and family.  There may also be memory issues resulting from the lapse of time and cultural issues which affect how an applicant answers questions.  The Tribunal has taken these matters into account as suggested in the Tribunal’s Guidelines on the Assessment of Crediblity, both in conducting the hearing and in the assessment of the evidence as a whole.

2. The Tribunal accepts that the applicant left school at an early age and accepts that the events she recounted to the Tribunal at the hearing occurred over a decade ago now.  The Tribunal also accepts that the applicant presented as nervous during the hearing in giving her evidence to the Tribunal. 

3. The Tribunal is mindful of the Department delegate’s comments about the quality of the translating during the Department interview.  The applicant’s representative also made submissions during the Tribunal hearing, regarding the summarising of evidence by the interpreter rather than the interpreter translating all evidence given by the applicant.

4. The Tribunal has noted the numerous discrepancies in the evidence, above, regarding the four claimed assaults.  The Tribunal does not consider that these discrepancies are explained by a lapse in time, or by nervousness of the applicant, or for any other plausible reasons.  The Tribunal notes in particular that the documents provided by the applicant to the Department contain inconsistent and irreconcilable information as to the attacks and damage that the applicant claims occurred. These inconsistencies are unable to be explained by a lapse in time, or by nervousness of the applicant at the hearing, or by stress caused by the review process.  Having regard to the prevalence of document fraud in Papua New Guinea,[3] the Tribunal finds that the medical and police documents put forward by the applicant in support of her claims are not genuine documents and do not establish that she was assaulted by [Ms A] in February 2010, May 2010, August 2010 or December 2010. 

   [3] DFAT Country Information Report Papua New Guinea, 10 February 2017, at 5.36.

5. Having regard to the extent of the other inconsistencies in the applicant’s evidence, and in the evidence given by the applicant husband, the Tribunal has significant doubts that the applicant was the victim threats or assaults on four occasions.  The Tribunal, however, is unable to make a confident finding that the applicant was not subject to any adverse attention from [Ms A] following claims of an affair between the applicant and [Ms A]’s husband, and has proceeded on the basis that this may have occurred.  The Tribunal accepts that the applicant was subject to a significant assault to her head while she was in Papua New Guinea and has also proceeded on the basis that this may have been caused in an assault by [Ms A] on one occasion.

6. The Tribunal finds that, if the applicant returns to Papua New Guinea now or in the reasonably foreseeable future, the applicant would return to Port Moresby where she and her family own a house and where they previously resided.

7. The most recent DFAT report for Papua New Guinea states that since independence in 1975, the country has faced considerable economic, security and political challenges, growing levels of crime, corruption and political instability, with many citizens having limited access to government services.[4]  The UN High Commissioner for Human Rights has noted that much of Papua New Guinea’s population lives in abject poverty, with acute malnutrition rates in some areas comparable to Yemen, and with minimal access to quality healthcare and education.[5]  The crime rate in Port Moresby is high, with settlement areas being particularly dangerous.  Machetes and firearms are used commonly in assaults and thefts and car jackings, armed robbers, assaults including sexual assaults and stoning of vehicles being common.  Gender-based violence and crimes against children are described as occurring regularly.[6]

   [4] DFAT Country Information Report, Papua New Guinea, 10 February 2017, at 2.2 – 2.3.

   [5] United Nations Human Rights, Office of the High Commissioner, ‘UN human rights chief urges Papua New Guinea to combat corruption and strengthen rule of law’, 9 February 2018 at

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

8. The Constitution provides for equal participation by women, there is an Office for the Development of Women, a national Council of Women Act (2010) and several civil society organisations dedicated to improving the situation for women in Papua New Guinea.  However, despite such efforts, gender discrimination exists at all levels in Papua New Guinea and cultural barriers continue to place significant limits on the extent of female participation.[7]  Women’s participation in the workforce is limited by cultural stigma against women’s education or employment, gender discrimination, nepotism, the risk of violence and sexual abuse, high levels of female illiteracy and low levels of female education.  Restrictions on women’s education include underage marriage, unwanted pregnancies and lack of financial support.[8]

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

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

9. Levels of violence are described as extremely high across Papua New Guinea, with family violence endemic.  Reports by Human Rights Watch in 2013 and 2015 and Medecins Sans Frontieres in 2016 note the high prevalence of family violence and lack of protection mechanisms for victims of violence.[9]  Elsewhere, the US Department of State has reported on the commission by police of sexual violence against victims, including against women in detention.[10]

   [9] DFAT Country Information Report, Papua New Guinea, 10 February 2017, at 3.34 – 3.36.

   [10] US Department of State, 2020 Country Reports on Human Rights Practices: Papua New Guinea, 30 March 2021 at

10. 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 due to deeply held cultural traditions and institution restrictions and that women in Papua New Guinea face a high risk of gender-based violence, regardless of their social status.  Women subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.[11]

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

11. As to whether state protection available, the Royal Papua New Guinea Constabulary (RPNGC) is responsible for internal security across all regions aside from the Autonomous Region of Bougainville.  The RPNGC is perceived very poorly within the community.  In particular women surveyed reported disrespect, lack of action on complaints and sexual aggression and violence, including rape by police and exchange of favours for better treatment.  Resource constraints limit the effectiveness of the RPNGC and police presence is negligible in some remote areas of Papua New Guinea. International bodies have identified abuses of power and the use of violence by police, including high profile incidents in January 2015 in which a woman was shot and killed and a police officer subsequently charged over her murder, and in January 2017 when two villagers were killed by officers in the outskirts of Port Moresby.[12]  During 2020, the RPNGC were reported to engage in torture, cruel or inhuman or degrading treatment and punishment, a failure to investigate violence against women, arbitrary and unlawful killings, beating and abusing civilians, beating and taking money away from women, excessive force used against people in custody, arbitrary detention without evidence, harm to family members of alleged offenders and sexual violence.[13]  In August 2021, A police constable in Port Moresby was sentenced for the repeated rape of a young girl over a number of years.[14]

    [12] DFAT Country Information Report, Papua New Guinea, 17 February 2017, at 5.4. – 5.8.

    [13] US Department of State, 2020 Country Reports on Human Rights Practices: Papua New Guinea, 30 March 2021, at

    [14] US Department of State, 2021 Country Reports on Human Rights Practices: Papua New Guinea, 12 April 2022, at

12. The Tribunal is prepared to accept that, if she returns to Papua New Guinea now or in the reasonably foreseeable future, the applicant may face further adverse attention from [Ms A], given the culture of payback in Papua New Guinea.[15]  The Tribunal is prepared to accept that the applicant may face further physical threats and attacks from [Ms A] in Papua New Guinea and that the harm feared amounts to serious harm.  Given violence is reported to carry across the country, including to Port Moresby, the Tribunal finds that the applicant faces harm from [Ms A] in Port Moresby and therefore that it would be unreasonable for her to relocate to avoid the harm feared.

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

13. The Tribunal finds that the reason for the harm feared by the applicant is her membership of the particular social group of women perceived to have committed adultery.  The Tribunal finds that the harm feared by the applicant involves systematic and discriminatory conduct.  Having regard to the current situation in Papua New Guinea, in particular systemic issues that have led to a significant erosion of basic services and safety to its population, the Tribunal finds that the applicant would not be offered effective state protection in Papua New Guinea and therefore that there is a real chance the applicant faces serious harm if she returns to Papuan New Guinea now or in the reasonably foreseeable future. 

14. The Tribunal is satisfied that the applicant is owed protection under s.36(2)(a).

15. The Tribunal is satisfied that the applicant daughter would return to live in Port Moresby with the family unit, if she is required to return to Papua New Guinea now or in the reasonably foreseeable future. The Tribunal finds that the applicant daughter faces gender-based violence in Papua New Guinea and that the applicant daughter faces serious harm if she returns to Papua New Guinea for reasons of her membership of the particular social group of female children in Papua New Guinea. Given the prevalence of violence against females in Papua New Guinea, the Tribunal finds that there is a real chance the applicant daughter would face the harm feared and that the harm feared is systematic and discriminatory. For the same reasons as those set out above, the Tribunal finds that the state is unable or unwilling to offer protection to the applicant daughter from the harm feared and that it would be unreasonable for the applicant daughter to relocate to avoid the harm feared. The Tribunal is satisfied that the applicant daughter is owed protection under s.36(2)(a).

16. The applicant’s representative submits that the applicant husband and applicant sons fear harm from the general population, enemy tribes as family members of the applicant and/or returnees from Australia who are perceived to be wealthy.

100.   The Tribunal is not satisfied that the applicant husband or applicant sons face harm from [Ms A] upon return to Papua New Guinea, on the basis that any past harm from [Ms A] has been directed towards the applicant rather than towards other members of her family.  While the Tribunal accepts the security situation across Papua New Guinea is poor, the Tribunal finds that any harm arising from this is not due to the applicant’s past conflict with [Ms A].  The Tribunal is not satisfied the applicant husband or applicant sons face a real chance of serious harm as family members of the applicant, if they return to Papua New Guinea now or in the reasonably foreseeable future.

101.   The applicant husband gave evidence at hearing that when he was working in Port Moresby, there was conflict in the Highlands because they thought he was supplying bullets to another clan and he was confronted about this.  The applicant husband gave evidence that this had occurred in 2006.  When asked whether any other incidents had happened after 2006, the applicant husband stated that ‘now they’re everywhere in Papua New Guinea’.  The Tribunal finds that the applicant husband remained in Papua New Guinea for five years after this claimed incident without any further claimed conflict arising from this.  Given this, and given the further time that has passed since the applicant husband arrived in Australia, the Tribunal finds that any risk to the applicant husband arising from conflict in the Highlands in 2006 is remote.  The Tribunal is not satisfied the applicant husband or applicant sons face a real chance of serious harm from enemy tribes if they return to Papua New Guinea now or in the reasonably foreseeable future.

102.   The applicant husband was asked during the hearing whether there are any other reasons he fears returning to Papua New Guinea and he gave evidence that his children have adapted to the Australian way of life.  He did not claim to fear harm upon return because he would be perceived to be wealthy.  There is little information about the conditions for returnees as there is no mechanism for monitoring returnees.[16]  The applicant husband has worked previously in Papua New Guinea and has worked in Australia, however, aside from his ability to find employment, the Tribunal was not persuaded that the applicant husband and applicant sons would be perceived to be wealthy.  The Tribunal is not satisfied the applicant husband or applicant sons face a real chance of serious harm, if they return to Papua New Guinea now or in the reasonably foreseeable future, as returnees from Australia who are perceived to be wealthy.

[16] DFAT Country Information Report, Papua New Guinea, 10 February 2017, at 5.33.

103.   The Tribunal has also considered the cumulative claims of the applicant husband and applicant sons but finds there is not a real chance they face serious harm for any reason, if they return to Papua New Guinea now or in the reasonably foreseeable future.

104. The Tribunal is not satisfied that the applicant husband or applicant sons satisfy the criterion set out in s.36(2)(a).

Complementary protection

105.   Section 36(2)(aa) requires the Tribunal to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea, there is a real risk the applicant husband or applicant sons would suffer significant harm.  Significant harm is defined at s.36(2A) to include arbitrary deprivation of life, imposition of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

106.   The Tribunal accepts that the security situation in Port Moresby is poor and crime is widespread.  However, the Tribunal finds that any harm faced by the applicant husband and applicant sons arising from this is harm faced by the population generally and not by the applicant husband and applicant sons personally.  In these circumstances, there is taken not to be a real risk the applicant husband and applicant sons face significant harm upon return to Papua New Guinea.  For this reason, the Tribunal is not satisfied that the applicant husband or applicant sons satisfy the criterion in s.36(2)(aa).

Members of the same family unit

107. The Tribunal is satisfied that the applicant husband is a member of the same family unit as the applicant. The Tribunal is further satisfied that the applicant son [is] under 18 years of age and dependent on the applicant and applicant husband. The applicant husband and applicant son [are] members of the same family unit as the applicant for the purpose of s.36(2)(b)(i).

108. The Tribunal accepts the evidence given by the applicant and applicant husband that [Applicant 5] is over 18 years of age, has lived with them continuously since arriving in Australia and has been financially reliant on them continuously since arriving in Australia. The Tribunal accepted the evidence given on behalf of [Applicant 5] by the applicant and applicant husband that [Applicant 5] is not currently working and has not worked for two years due to the COVID-19 pandemic. The Tribunal finds on the evidence before it that [Applicant 5] is substantially reliant on his parents for financial and emotional support. The Tribunal is satisfied that [Applicant 5] is also a member of the same family unit as the applicant for the purpose of s.36(2)(b)(i).

109.   As such, the fate of the applicant husband and applicant sons’ application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

110.   The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first and third named applicants satisfy s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Tamara Hamilton-Noy
Member