1722928 (Refugee)

[2018] AATA 2089

1722928 (Refugee) [2018] AATA 2089 (12 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722928

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Michael Hawkins

DATE:12 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 12 June 2018 at 5:06pm

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Federal Court remittal – Fear of Harm – Further sexual harassment and assault – Sexual assault victim – Social group – Single young woman – Country information supports the applicant’s claims – Credibility issues – Difficulty articulating claims – Joint application with siblings – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 5H, 5J, 36, 65, 91R, 438, 499
Migration Regulations 1994, Schedule 2

CASES
Applicant S v MIMA [2004] HCA 25
Attakora v Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444
GM (Eritrea) v SSHD [2008] EWCA Civ 833
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZSPT v Minister for Immigration and Border Protection 120141 FCA 1245

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

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Papua New Guinea, applied for the visa on 6 September 2013 and the delegate refused to grant the visa on 10 March 2014.

3. The applicant sought a review of the delegate’s decision and appeared before the Refugee Review Tribunal on 9 December 2014. The Tribunal affirmed the decision of the delegate on 23 January 2015.

4. The applicant appealed to the Federal Circuit Court of Australia (“FCCA”). [In] September 2017, the FCCA remitted the matter back to the Tribunal to reconsider and re-determine the matter according to law.

5. The applicant appeared before the Tribunal on 17 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [sister] and the applicant’s [father]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.

6. The applicant was represented in relation to the review by her registered migration [agent].

   RELEVANT LAW

7. 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

8. 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).

9. 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.

10. 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.

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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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

18. 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’).

19. ‘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.

20. 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.

    Section 499 Ministerial Direction

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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

22. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Background:

23. The applicant is a [age] year old woman born in [Papua] New Guinea (“PNG”).

24. The applicant is of the Christian faith and of PNG ethnicity.

25. The applicant speaks Pidgin English and English.

26. The applied for and was granted a FA600 Tourist Visa on 7 June 2013.

27. The applicant arrived in Australia on 9 June 2013 pursuant to a passport [number deleted], issued on [date] 2009 and expiring [date] 2014.

28. The applicant applied for a protection visa on 6 September 2013. That application was made jointly with two siblings.

29. The delegate determined that the applicant was not a member of the same family unit as her siblings. As the applicant had made her own claims for protection, the delegate assessed her claims separately, but ultimately the delegate refused to grant the visa on 10 March 2014.

30. The applicant sought a review of the delegate’s decision and appeared before the Refugee Review Tribunal on 9 December 2014. The Tribunal affirmed the decision of the delegate on 23 January 2015.

31. The applicant appealed to the Federal Circuit Court of Australia (“FCCA”). [In] September 2017, the FCCA remitted the matter back to the Tribunal to reconsider and re-determine the matter according to law.

    Claims:          

32. The applicant claims that the former partner of the applicant’s grandmother, Mr J, died in a road accident while at work in 2012. His death occurred not long after Ms M and Mr J had an argument due to Mr J being unfaithful. After the death of Mr J, his family and Ms M had some disagreement about who should receive compensation from Mr J’s employer. The family of Mr J delayed to harm Ms M as not to jeopardise receiving the compensation. On the day after the applicants left their home town to come to Australia to attend the family event, members of the family of Mr J went to the applicant’s home town looking for him and his family. The family of Mr J made accusations Ms M used sorcery against Mr J. The applicant fears if she returns to PNG she will be harmed by the family of Mr J who are seeking revenge for the death of Mr J, because the applicant is a member of the family of Ms M.

33. The applicant claims the the son of Ms M’s cousin (who had lived with Ms M as a son), Mr S, was murdered in Port Moresby in 2010. The murderers were jailed. A brother of Ms M was with Mr S shortly before the time of Mr S’s death. The family of Mr S consider Ms M’s family are responsible for the death of Mr S and have made threats against Ms M and the applicant, including making an application to a village Court. The family of Mr S made accusations Ms M used sorcery against Mr S.  The applicant fears if she returns to PNG she will be harmed by the family of Mr S who are seeking revenge for the death of Mr S, because the applicant is a member of the family of Ms M.

34. The applicant claims that since 2011, there has been clan violence occurring in the applicant’s paternal ancestral village. In November 2013 (after the applicant came to Australia), there was a grenade attack, which was a marked escalation in the clan violence. The applicant fears she will be targeted for harm as a member of clan M, which is involved in that clan violence.

35. The applicant claims that she was sexually harassed at a bus stop while waiting for the school bus. Her tuition fee was stolen. She had to cease attending school. She fears she will be sexually harassed in future if she returns to PNG.

    Evidence:

36. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s protection visa application forms completed and signed on 5 September 2013, lodged on 6 September 2013 (“visa application”);
    • The applicant’s identity documents being a certified copy of her passport;
    • The protection visa decision record (‘delegate’s decision record’) of 10 March 2014;
    • Decision of the Refugee Review Tribunal of 23 January 2015 (“previous Tribunal decision”);
    • The review application form which did include a copy of the delegate’s decision record;
    • Decision of the Federal Circuit Court of Australia dated [September] 2017;
    • Pre-hearing submissions of the applicant’s representative including statements of witnesses and country information received between 7 and 11 May 2018;
    • Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Papua New Guinea, published on 10 February 2017.

    Country of reference / receiving country

37. The applicant claims to be a Papua New Guinean national. Based on the copy of identity documentation, including her passport, provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Papua New Guinea is her country of nationality and also her receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

38. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).

    Hearing:

39. The applicant attended the hearing on 17 May 2018 accompanied by her father (“father”) and her sister (“sister”). She was not represented. The hearing was assisted by an interpreter in the Pidgin (PNG) and English languages.

40. The Tribunal notes that the applicants’ departmental file includes a certificate and notification regarding the disclosure of certain information under s. 438 of the Act. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folio contains information relating to ‘an internal working document and business affairs’. The Tribunal provided a copy of the certificate to the representative and read out the contents of the certificate to the applicant.

41. The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folios, finds the certificate invalid. The folios the subject of the invalid certificate have not been considered relevant to this review because they are largely administrative and summarises the cases of the applicant and her various family members to date. The Tribunal discussed this with the applicant and representative. As the Tribunal has copies of all relevant decisions in relation to this matter, it confirmed that it would not be relying on any information referred to in the said folios.

42. The Tribunal asked the applicant about the completion of the applicant’s Protection Visa application form. The applicant said her father completed the form and she signed it herself.

43. The Tribunal sought to confirm some of the applicant’s background information referred to above. It discussed with the applicant where she was born, where she lived, when she came to Australia and her visa background information, including the reviews and appeals she had undertaken.

44. The applicant confirmed she was [age] years of age when she came to Australia. She confirmed that prior to coming to Australia she lived with her mother and some aunts in Lae, in PNG.

45. The Tribunal asked the applicant were she would live if she was required to go back to PNG. She said she have to go back to her mother.

46. The applicant confirmed that she had not worked in PNG prior to leaving. She said she was still at school until just prior to coming to Australia. She said she started school in about [year], when she was about five years of age. She left school in May 2013, when she was in [grade deleted]. She was [age] years of age. She said that she had repeated some years and missed one or two years of school along the way.

47. The Tribunal discussed with the representative its view that the claims as set out in the decision of the previous Tribunal were an accurate summary of the claims. The representative agreed. The Tribunal read to the applicant her claims as set out in paragraphs 32 to 35 above. The applicant confirmed that the claims were all accurate.

48. The Tribunal discussed with the representative its observation that the applicant’s major claim appeared to be the fourth claim – that contained in paragraph 35. The representative agreed. The Tribunal explained to the applicant that her previous representatives had made much of the first three claims, and that neither the delegate or the previous Tribunal were persuaded that her evidence supported claims that she had been sexually harassed. However, her new representative was making a claim that she was a member of a particular social group of single young women in PNG who are persecuted by reason of their membership of that group and had submitted a lot of country information in support of that claim.

49. The Tribunal asked the representative whether he was withdrawing the other claims. The representative said he was not as he had discovered a lot of information about sorcery and its prevalence today.

50. The Tribunal proposed to the applicant and representative that as it had got off to a late start, that it might consider the fourth claim today, and that if it could be persuaded by evidence and country information that the claim could be made out, then there may not be a requirement to consider the other claims at all.

51. The representative agreed with the proposed course of the hearing.

52. The Tribunal discussed with the applicant that she claimed she had been sexually harassed at a bus stop while waiting for the school bus. The Tribunal asked the applicant to explain what happened. She replied by saying that when she was at school, there were men who would harass all of the girls, and they would try and get our money. She said they were raskols. She said she wasn’t comfortable going to school. She said that on many occasions, those men would steal her bag, or just slash the bottom of her bag and take the money. She reiterated that this happened many times. She said that on one occasion, in 2013, when she was in Year [grade], she was grabbed. The Tribunal asked where she was grabbed. She said at the bus stop. The Tribunal asked where on her body she was grabbed. She said she was grabbed around the chest and she was groped on other parts of her body too. The Tribunal noted the applicant’s disposition at this time as being very uncomfortable in explaining this event. She said that when she got home, her mother rang the police. She said she felt very unsafe going to school. The Tribunal was mindful of the applicant’s age and gender and the sensitive nature of the evidence that may have made her reluctant to provide detail to a male Member, with her father present when she gave evidence and her male migration agent also present with her at the hearing (though the interpreter was female).

1. The Tribunal asked the applicant whether she was aware of the fact that her sister had been raped when she was in PNG. She said she was not as it had been kept a secret. She had become aware of it since being in Australia. She said she also feared being raped.

2. The Tribunal discussed with the applicant what she had said to the delegate. The Tribunal reminded the applicant that she had stated at the interview, that she twice had her bag snatched, stealing her school tuition, but she was not harmed and did not make a complaint to the police.

3. Then later, in a submission from the migration agent, the applicant stated that she told her mother to withdraw a police complaint because she feared further harm.

4. At the previous Tribunal hearing the applicant told the Tribunal she was pulled once and robbed once at the school bus stop. On the occasion she was ‘pulled’ a man held her body.

5. The Tribunal asked the applicant how she could reconcile these different accounts. She said she couldn’t remember what she had said to the delegate, but maintained that she had told the other Tribunal that she had been sexually grabbed. Her father interjected and offered that the interpreter during her interview with the delegate did not interpret correctly what she said.

6. The Tribunal also noted that the delegate had given her an opportunity to provide a sworn statement about the fact that she had been sexually harassed and that the police had failed to respond to her complaint. The Tribunal asked why she hadn’t provided such a statement. She replied that she didn’t know she had to.

7. The Tribunal expressed its concerns about the vagueness of her evidence in relation to the claims of sexual harassment in the past and her explanation of the inconsistencies between her evidence in the hearing and that given in previous interviews and hearing.

8. The Tribunal heard from the first witness, the applicant’s sister.

9. The sister explained that she had been raped by her boyfriend. She said that it had been reported to the police. She said the police responded and came to her house, but the boy ran away and hasn’t been seen since. She said the police couldn’t find him. She said she didn’t pay any bribe to the police. She said the police didn’t try to assault her. She said she thought the police tried to catch the boy.

10. The Tribunal asked the applicant what fears she had for the applicant. She said she worries about her sister suffering a random attack. The Tribunal asked whether she thought the applicant was a particular target – was there anything about her that would make her more susceptible to attack? She said, no just because she is female.

11. The Tribunal asked whether she had any other experiences she would like to tell the Tribunal about. She said that even when she was at school, boys would come up to her in very public places, like markets, and openly grope her.

12. She said she doesn’t want her sister to go back to PNG and experience what she experienced. She added that when she came to Australia she was very traumatised, and was able to access counselling to help her. Australia saved her life.

13. The Tribunal discussed with the applicant again her experiences at school. It asked the applicant why it was that she left the school in May 2013. She said she felt unsafe. She was fearful that she would be pulled and raped.

14. The Tribunal asked who decided she should pull out of school. She replied that it was her mother and her.

15. The Tribunal asked again about whether she made a police report – did she ring the police or go to the police station. She said her mother put in a report at the police station. She says she knows the police didn’t catch them. She said she didn’t know who the offenders were. The Tribunal asked whether she had a copy of the report her mother made. She said it was a long time ago, she wasn’t sure whether her mother had it. Asked whether she felt the police did their best to apprehend the offenders, she said that Lae is a big place and it is hard to find people.

16. The Tribunal spoke with the second witness, the father. Asked what he fears for his daughter, he said he feels she wouldn’t be safe in PNG alone. He said he worries that what happened to her sister will happen to her. He added that going back to her mother and aunts is not a safe environment – she can’t be locked up all day. He said that single women aren’t safe. Men in PNG are like a pack of hungry dogs. He said the raskols are rapists, especially when affected by drugs. He said he would not be able to forgive himself if anything happened to her.

17. The Tribunal attempted to get the third witness on the phone, but the number would not connect. The Tribunal asked the representative what evidence the witness would provide, the Tribunal noting that it appeared from his statement that he was not a witness to any assault upon the applicant – he appeared to be confirming for the record that she left the school [in] May 2013, the day the applicant stated she had left school.

18. The Tribunal invited the representative to obtain a statement from [Mr A] and to provide a submission that addressed the specifically the matter of particular social groups.

19. Post hearing, the representative provided a detailed submission including a statement from [Mr A], the Deputy Head Teacher at the applicant’s former school.

    [Mr A] maintains that he knew [the applicant] for 10 years before she left the school and was involved in her early education. [Mr A] maintains that he has seen 10 or 12 girls assaulted in similar circumstances as to [the applicant] and this happens where there is no male support like fathers and brothers. [Mr A] maintains that the men ("Rascals”) who perpetrate the sexual violence or harassment are taking drugs such as marijuana. He states that young single women need to be chaperoned or provided with a male protector nearly at all times when they are travelling and/or commuting in PNG cities such as Lae and he states further that he has a daughter [name deleted], who is [age] years old and attending University in Lae. [Mr A] personally takes her to the bus and collects her from the bus or delivers her to the University Campus. He has been doing this for the last four years.

20. The representative also provided extracts of country information from a number of sources.

    The Country Information is disturbing, in that it is stated that Police and prosecutors rarely pursue criminal charges against perpetrators of family violence including repeated rape and police often demand money from victims before they would act which is exactly what [Mr A] has stated. Family and Sexual Violence Units ("FSVU’s") have been set up in police stations and hospitals to protect victims of family violence and 15 FSVU’s were operational nationwide.[1]

    As stated in the hearing, because of the 'growing outrage at the deteriorating law and order situation in PNG and levels of violence against women, Parliament passed the Criminal Code (Amendment) Act (2013) which added several offences for which the death penalty could be imposed and one of these was aggravated rape.[2]

    The DFAT Report also mentions that women have reported allegations of rape by Police and the requesting of sexual favours for better treatment.[3]

    The document ‘Stop Violence Against Women and Children in Papua New Guinea'[4] also notes disturbing circumstances where children younger than 16 represent half of the people who seek medical help after being raped.

    Survivors of sexual violence did not have adequate access to medical care.[5]

    The DFAT publication Smartraveller, is put out by the Australian Government as a guide to Australian Citizens and Permanent Residents travelling and visiting foreign countries and what to be alert for. The Smartraveller guide in relation to Papua New Guinea has a warning that travelers or anyone in particular could encounter sexual assault, including gang rape.[6]

    [1] DFAT Report, paragraph 3.35

    [2] Ibid Paragraph 4.4

    [3] Ibid paragraph 5.5

    [4] At page 5

    [5] Ibid page 7

    [6] Smartraveller — Papua New Guinea Australian Government Department of Foreign Affairs and Trade

    Assessment of Claims and evidence, and findings:

21. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

22. In making its findings, the Tribunal is mindful the applicant has limited education and though was [age] years old at the time of the hearing, presented as one with less maturity than her years. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The Tribunal is satisfied the standard of interpreting at the hearing was reasonable and in any event, the applicant’s father was monitoring the interpreting and offered assistance when he felt the applicant did not understand either the Tribunal’s question, or the interpreter’s interpretation of the question. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.

23. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

24. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when 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.

25. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

26. The Tribunal has its reservations about the applicant’s claims. The Tribunal accepts that the applicant wishes to stay in Australia to make a future for herself. The applicant’s father stated that he would do anything to protect his daughter and have her stay in Australia.

27. The Tribunal had concerns about the applicant’s evidence. At first the Tribunal considered her evidence to be vague and elusory. However, after studying the witness for some time, the Tribunal felt that the applicant was having difficulty properly articulating herself. She regularly sought the assistance of the interpreter and her father often stepped in to better explain a question to her.

28. The Tribunal accordingly kept its inquiry limited in scope following discussion with the representative.

29. The Tribunal was concerned about the variations in evidence presented as between the delegate and the Tribunals in relation to the incidents at the school and bus stop. The Tribunal is satisfied that incidents occurred near the school and at the bus stop involving boys (who were described as local raskols) but which were primarily motivated by robbery. The Tribunal accepts that on one occasion the assault was of a sexual nature, with the offender having grabbed the applicant on the chest.

30. The evidence of [Mr A] supported that claim. His statement was illuminating as to the circumstances that young girls in PNG find themselves in. His comment about the care he is obliged to exercise with his own daughter who is at university was also compelling and consistent with much of the country information the representative had submitted.

31. The applicant claimed that she stopped going to school because of the harassment and assaults she was experiencing on the way to school. This claim has been borne out to some extent by the statement of [Mr A], who, whilst not having personally witnessed any assault upon the applicant, spoke of his experiences as a teacher and what he had seen happen to numerous other girls at that school. The Tribunal accepts that the applicant left school to avoid the incidents of harassment she was experiencing.

32. The Tribunal is satisfied that the applicant’s concerns have been elevated since learning of her older sister’s rape experience in PNG.

33. The Tribunal had its concerns about the involvement of the police. The evidence varied as to whether a police report was made, by whom, when and if it was actually ever made, and if so, whether it had been withdrawn. The Tribunal suspects that the applicant has little knowledge of whether her mother made a complaint, or followed it through.

34. The Tribunal noted country information as follows[7]:

    The Royal Papua New Guinea Constabulary (RPNGC) is responsible for maintaining internal security in all regions of the country. The Police Commissioner reports to the Minister for Police. Under the terms of the Bougainville Peace Agreement, the Autonomous Region of Bougainville (ARB) maintains its own police force, the Bougainville Police Service. While the ARB Minister for Police has authority to enforce local law, the RPNGC retains the authority to ensure that national law is enforced. In some areas of PNG, including Bougainville, supplementary policing is provided through an initiative known as the Community Auxiliary Police. The Police Act (1998) affords this force the same powers as the regular police, although the exercise of their powers is limited to the geographical area in which they are appointed.

    The PNG Community Perceptions Survey 2015 (see ‘Crime’) highlighted that the RPNGC was perceived very poorly in the PNG community. 70 per cent of those surveyed reported that police did not treat people fairly; 67 per cent reported that police did not treat people with respect; and 66 per cent reported that police were not honest. The survey also noted that focus groups raised gender as an issue, with women surveyed reporting disrespect, lack of action on complaints, and sexual aggression and violence (including rape by police and the exchange of sexual favours for better treatment). However, the report did highlight some evidence of positive improvements in Port Moresby and Lae, including greater visibility in these areas and an increase in people’s willingness to seek help from them.

    Resource constraints limit the effectiveness of the RPNGC, particularly in relation to staffing. The RPNGC’s numbers have remained static over the past few decades despite a huge growth in PNG’s population. The police presence is negligible in some remote areas of PNG. Transport limitations, including a lack of vehicles and fuel, limit the RPNGC’s ability to investigate crimes. The police also endure poor working and living conditions, including low remuneration; frequently need to assert themselves in violent environments often without weapons or protection; have family/clan obligations to meet; and are generally poorly trained, particularly on human rights.

    [7] DFAT Report, page 22 – 23 (paragraphs 5.4 – 5.6)

35. The Tribunal has had regard to country information [8] which reports on the high degree of prevalence of sexual violence against women in PNG. Much of the reports focus particularly the extremely high levels of domestic violence against women and the denial of state protection to female victims of domestic violence. The applicant is a young, single woman. There is no suggestion on the evidence before the Tribunal that she has a real chance she will suffer domestic violence in the reasonably foreseeable future.  But the country information refers more generally to incidences of rape and sexual assaults with a high percentage of the female population of PNG being victim to such harm.

    [8] United States Department of State for PNG (2013, Country Report on Human Rights Practices: Papua New Guinea, United States Department of State >

    The Tribunal did note however the evidence of the applicant’s sister who commended the police on their actions in relation to her report – the police were responsive and made efforts to catch her offender. Notwithstanding this, the weight of country information might suggest that the support the applicant’s sister received was an exception to the rule.

36. The Tribunal noted the findings of the previous Tribunal:

    51. The Tribunal has sought to benefit the applicant by considering that her claimed fear is greater than that as it is currently described as being a fear of sexual harassment and extends to sexual violence. It does that mindful of the reference to her being ‘sexually violated’ in the submission of the migration agent, which suggests the applicant experienced something more than sexual harassment. Having regard to the examples of instances of serious harm in s.91R(2), the Tribunal would not consider sexual harassment to be an instance of serious harm, but does consider sexual violence to be an instance of serious harm causing significant physical harassment or ill-treatment.

    63.      Having regard to the country information set out above about the high degree of prevalence of sexual violence suffered by women in PNG, the Tribunal considers there is a real risk the applicant will suffer sexual violence if she is returned to PNG. However, the Tribunal finds that that risk of sexual violence is one faced by the population of women in PNG generally and is not one faced personally by the applicant.

37. The Federal Circuit Court determined that the previous Tribunal erred in relation to the following conclusion: the Tribunal finds that that risk of sexual violence is one faced by the population of women in PNG generally and is not one faced personally by the applicant.

38. The Tribunal considered the submissions made by Counsel on behalf of the applicant on her appeal to the Federal Circuit Court of Australia. Those submissions included:

    Ground One — Complementary Protection — Misconstruction and misapplication

    The Tribunal misconstrued the exclusionary provisions 36(2B)(c) of the Act and misapplied it to exclude the applicant's claims for complementary protection for a real risk of sexual violence which the Tribunal had accepted the applicant would face if returned to PNG.

    Section 36(2B)(c) of the Act excludes complementary protection where the risk of significant harm is general to the population:

    (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:

    (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

    The Tribunal had regard to country information of the "high degree of the prevalence of sexual violence suffered by women in PNG" to find that there was "a real risk the applicant will suffer sexual violence if she is returned to PNG": at [63].

    However the Tribunal also found "that the risk of sexual violence is one faced by the population of women generally and is not one faced personally by the applicant". The Tribunal went on: "As a result, the Tribunal finds the harm the applicant may suffer in PNG is not significant harm under the Act by the operation of s 36(2B)(c)": at [63].

    A correct construction of s 36(2B)(c) did not permit the Tribunal to divide "the general population" at all, and certainly not into divisions into which fitted respectively the perpetrators and victims of a significant harm the applicant claimed to fear.

    In SZSPT v Minister for Immigration and Border Protection[9] Rares J said:

    [9] 120141 FCA 1245 at [11, followed in BBK15 v Minister for Immigration and Border Protection 120161 FCA 680 by Buchanan J at [30] and in CLJ15 v Minister For Immigration [20171 FCCA 467 at [26]

    11. In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.

    Here the Tribunal's findings on the risk of sexual violence were limited to those faced by the women in PNG generally, not by the population of the country generally. The Tribunal made no findings on any risk of sexual violence faced by the male population. Further it followed from the Tribunal's finding that the applicant, as a woman, was personally exposed as an individual to a real risk of this sexual violence; and indeed the Tribunal made a separate finding to this effect: at [63].

    Had the Tribunal properly exercised its jurisdiction and construed and applied s 36(2B)(c) correctly, there would be no basis to exclude the applicant from complementary protection in the light of its findings:

    ".. the Tribunal accepts that sexual violence does amount to significant harm: at [61]; and

    "... there is a real risk the applicant will suffer sexual violence if she is returned to PNG...": at [63].

    Ground Two —Refugee protection, constitution of a Particular Social Group in respect of the sexual harm claim

    The Tribunal fell into jurisdictional error when it failed to consider an integer of the constitution of the particular social group to which the applicant belonged by reason of which the applicant would face a real risk of sexual harm from raskols upon return to PNG.

    The Tribunal noted the applicant had not clearly articulated the Convention ground on which she feared sexual harm. The Tribunal considered the only relevant ground to be her membership of the 'particular social group' of "single women in PNG": at [52]. The Tribunal then went on to find this was not a 'particular social group' as it was "too broad a group" due to the diversity of age, education, and whether they are from rural and urban areas".

    The applicant had not articulated a particular social group beyond her original statement: "Being a girl in PNG is very frightening at the best of times".20 However her father had also referred to a statement to come from his daughter: "There is also to be a sworn statement by my daughter stating about being sexually harassed by the rascals in Lae at the bus stop morning and afternoon especially when the girls are going to and from school. We have reported it to the police but nothing happens. The Deputy Principal of the secondary school will also write a statement of what is happening at bus stops regarding girls that attending that school".

    The group definitions of "single young women" or "single young women in Lae" were open on the facts. Even though not expressly advanced by the applicant, the Tribunal's review function required the constitution of these social groups to be considered. Each was apparent on the face of the material before the Tribunal and did not depend for their exposure on constructive or creative activity by the Tribunal beyond the exercise of its inquisitorial function.

    Acceptance of the applicant's membership of either of these particular social groups would have been dispositive of the application for review, each group being considerably narrower than that broad group of "single women in PNG" to which the Tribunal limited its consideration, and because membership of each could have been the reason for persecution upon the Tribunal's factual findings at [63] that "there is a real risk the applicant will suffer sexual violence if she is returned to PNG", and "that risk of sexual violence is one faced by the population of women in PNG generally".

1. Further to these submissions, the decision of the Federal Circuit Court and the submissions of the representative, the Tribunal considered the issue of particular social group.

2. The Tribunal considered whether “single young women” or “single young women in Lae” or a combination thereof, may be a class of “particular social group” for the purposes of Article 1A(2) of the Convention. The Tribunal considered all of the country information referenced above as well as the findings of the previous Tribunal and submissions and country information cited by both counsel representing the applicant respectively before the Federal Circuit Court and this hearing.

3. Notwithstanding the Tribunal’s findings in relation to credibility, the Tribunal refers to the decision of the Court of Appeal of England and Wales of GM (Eritrea) v SSHD [2008] EWCA Civ 833 (per Buxton LJ at [31]):

   [T]hat a person who has not given a credible account of his own history cannot easily show that he would be at risk .. is … a robust assessment of practical likelihood, but it is … any sort of rule of law or even rule of thumb. In every case it is still necessary to consider, despite the failure of the applicant to help himself by giving a true or any account of his own experiences, whether there is a reasonable likelihood of persecution on return.

4. Similarly, the Canadian Federal Court of Appeal observed in Attakora v Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (F.C.A.) that ‘whether or not the applicant was a credible witness … that does not prevent him from being a refugee if his political opinion and activities are likely to lead to his arrest and punishment’.

5. [The applicant’s migration agent] made the point that all of the country information available, namely from the DFAT Report, Smartraveller and the document “Stop Violence Against Women and Children in Papua New Guinea” establish that sexual violence in PNG is rife.

6. The Tribunal noted the decision of the High Court in Applicant S v MIMA [2004] HCA 25 and in particular the decisions of Gleeson CJ, Gummow and Kirby JJ. A particular social 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.  A group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group".

7. McHugh J said that to qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle.  It is not necessary that the persecutor or persecutors actually perceive the group as constituting "a particular social group".  It is enough that the persecutor or persecutors single out the asylum-seeker for being a member of a class whose members possess a "uniting" feature or attribute, and the persons in that class are cognisable objectively as a particular social group.

8. Having considered the provisions of s91(S) and the decision of their Honours in Applicant S, the Tribunal is satisfied that the applicant would be perceived as a single young woman or a single young woman in Lae and is satisfied that “single young women” or “single young women in Lae” is a particular social group for the purposes of the Act.

100.   Would the applicant then be targeted because she is a member of that particular social group, or for her individual characteristics? On the weight of country information referenced, the Tribunal accepts that the applicant would be targeted for assaults and sexual harassment and violence because of the fact she is a single young woman or a single young woman in Lae, because of her membership of that particular social group of “single young women” or “single young women in Lae”. That is the essential and significant reason for the persecution. The persecution will involve systematic and discriminatory conduct.

101. Does the threat of being assaulted, sexually harassed or sexually violated constitute serious harm pursuant to s.91(R)(2)? The threat to the applicant’s life or liberty and significant physical harassment and ill-treatment of the applicant will qualify. The Tribunal accepts that being targeted for assaults and sexual harassment and violence may therefore amount to serious harm pursuant to s.91R(2).

Effective Protection

102.   The Tribunal discussed with the applicant and the representative country information about law enforcement in PNG.

103.   The applicant had submitted a lot of materials which could be summarised that in PNG’s criminal justice system, officials frequently engaged in corrupt activities with impunity. It went on to state that the effectiveness of the police is undermined by a lack of  basic resources, including lack of infrastructure, personnel, training and proper investigative equipment, inefficiency and endemic corruption.

104.   The statement of [Mr A] describes the police service as corrupt and when acts of assault or sexual violence occur, parents need to pay money to the police so they can pursue the matter and have it resolved.

105.   The applicant’s father stated that the police won’t look after her. There is no respect for the law in PNG.

106.   The Tribunal has considered whether effective protection is available in relation to the particular circumstances and profile of the applicant. The Tribunal finds that having regard to country information sourced through numerous articles provided by the applicant, the representative and independently sourced by the Tribunal, the applicant could not be confident of having access to effective protection in PNG.

Relocation

107.   The applicant lives with family in Australia. The Tribunal discussed with the applicant the location of residence of her other family members, it being noted that one sister lived in Australia, her father lived in Australia, [her] brothers, her mother and aunts still lived in Lae under no apparent threat of danger. The Tribunal discussed with the applicant that it may be necessary for her to live with her mother or even a sibling for a time until she becomes familiar with the location again, and develops the resilience to deal with the lifestyle and culture of the surroundings, and that as she presently lives with family in Australia, it should not be unreasonable for her to adjust to shared living arrangements with a family member. The applicant’s father stated that her circumstances were different to those of her family who have lived in Lae on a continuing basis. She would be returning to Lae without any reliable male protection. He said she could not live with her mother and aunts. 

108.   The representative stated that PNG is the same all over. Articles referenced in this decision cite Lae and the highlands as being some of the most dangerous places in the world. Other articles advise that there are other cities in PNG, particularly rural towns in the highlands, that are just as dangerous.

109.   The Tribunal accepts, on the basis of country information, and given the applicant’s personal circumstances of vulnerability and the applicant’s gentle disposition that she will be subject to a well-founded fear of serious harm wherever she lives within PNG.

Cumulative claims

110. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in her application, the Tribunal finds that the applicant does have a well-founded fear of persecution for the reason of being a single young woman now, and in the reasonably foreseeable future, if she returns to PNG. Accordingly, the Tribunal finds that she does satisfy the criterion in s.36(2)(a) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm

111. Having found that the applicant satisfies the criterion in s.36(2)(a), the Tribunal is not required to consider the applicant’s claims under complementary protection.

Conclusion: Refugee Criterion

112. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for reason of membership of a particular social group. Her fear of persecution is well-founded as required by s.5J of the Act and therefore she is a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

113. As the Tribunal has determined that the applicant is a refugee in accordance with s36(2)(a), it is not required to consider whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG.

Overall conclusion:

114. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

115. Having concluded that the applicant satisfies the criterion in s.36(2)(a), the Tribunal is not required to consider whether the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

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

Michael Hawkins
Member

publication  24 April 2018 at pp.3 and 5