1801300 (Refugee)

[2021] AATA 5118

1801300 (Refugee) [2021] AATA 5118 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801300

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Jason Pennell

DATE:30 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 30 September 2021 at 11.58am

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – Federal Circuit Court remittal – member of particular social groups – divorced woman - woman accused of sorcery – fear of harm from family or tribe members – harassment, threats and discrimination of family and tribe members directly and applicant by association – two women killed and applicant’s son attacked – credibility – vague evidence of claimed earlier incident – country information – police unlikely to intervene in tribal disputes – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J(1)(a), (b), 5L, 36(2)(a), 65, 116(1)(g)

Migration Regulations 1994 (Cth), r 2.43(1)(j), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379

MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

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 on 23 August 2016 to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) temporary protection visa (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 (PNG), applied for the protection visa on 6 May 2016 on the basis of being perceived to be a sorcerer from PNG and fears if she returns she will be killed by [Tribe 1] tribe members who believe that her family members were responsible for the deaths of two of their tribal members ([Mr A] and [Mr B]).

3.On 23 August 2016 the delegate refused to grant the protection visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).   

4.On 31 August 2016 the applicant initially applied to the Tribunal (differently constituted) (the First Tribunal),[1] for review of the delegate’s decision. On 9 December 2016 the First Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

[1] AAT Case No 1613953.

5.The applicant applied to the Federal Circuit Court of Australia (FCCA) for judicial review. By an order dated 24 November 2017 the FCCA remitted the matter back to the Tribunal for reconsideration.  

6.The applicant provided the First Tribunal with a copy of the primary decision record from the formerly known Department of Immigration and Border Protection (the Department) dated 23 August 2016.

7.The applicant appeared in-person before the Tribunal on 29 July 2021 to give evidences and present arguments. The hearing was assisted by an interpreter in the Pidgin (PNG) and English languages. The applicant was represented in relation to this review by her registered migration agent.

8.The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

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

10.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

11.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[2] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[3]

[2] s.5H(1)(a) of the Act.

[3] s.5H(1)(b) of the Act.

12.Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in Attachment A to this decision.

13.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in Attachment A to this decision.

Mandatory considerations

14.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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANT’S CLAIMS AND EVIDENCE

Identity and country of reference

15.The applicant claims that she was born on [Date] in [Village], [Town 1], Papua New Guinea (PNG) into the minority [Tribe 2], which is part of [Tribe 3]. She claims to be a citizen of Papua New Guinea, does not hold any other citizenship and is not a national of any other country.

16.The applicant provided the Department with a copy of the biodata page of her PNG passport valid from [2015] to [2020], which confirms her date of birth. There is no evidence to suggest that she has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds she is a citizen of PNG and as such her protection claims will be assessed against PNG as the country of reference and ‘receiving country’ respectively.

Applicant’s migration history

17.The applicant was granted a [Tourist visa] on 30 September 2015 while she was offshore. The conditions of the tourist visa required that she not engage in any work[4] and that she only engage in a maximum of three months’ study.[5]  The applicant arrived in Australia [in] October 2015 on the tourist visa accompanied by her sister [Ms C],[6] sister in law [Ms D],[7] brother in law [Mr E][8] and aunty [Ms F][9] .

[4] Condition 8101.

[5] Condition 8201.

[6] AAT Case No 1613951.

[7] AAT Case No1616892.

[8] AAT Case No 1613954.

[9] AAT Case No 1811034.

18.Upon arrival, the applicant was interviewed at Brisbane Airport by Department officers on the same day, where it was established that she was here with her family members to attend a wedding and to work [in a workplace doing a job task]. As the applicant was not permitted to work on her tourist visa, it was then cancelled under s.116(1)(g) and r.2.43(1)(j) as she was considered a non bonafide visitor, and she was thus refused entry into Australia and placed in immigration detention.

19.The applicant lodged an application for a protection visa on 6 May 2016 and was interviewed about her protection claims on 10 May 2016 at [a Detention Centre].

20.On 12 July 2016, the applicant’s Bridging visa E (BVE) application was deemed invalid as she did not meet the relevant eligible non-citizen criteria. On 14 July 2017 the applicant was granted a bridging visa which ceased on 14 January 2018. On 10 May 2018 the applicant was granted a further bridging visa.

21.On 23 August 2016, the delegate refused to grant the applicant a protection visa.

Claims for protection

22.The applicant’s claim for protection is detailed in her written statement attached to the protection visa application together with her statutory declaration dated 21 July 2021. The applicant claims that she will be seriously and significantly harmed if she is returned to PNG by reason that:[10]

(a)The applicant has been accused of sorcery and because she is associated with people who have been accused of sorcery.[11] 

(b)The applicant fears that if she returns to PNG she will be tortured and killed by members of [Tribe 1] or by the families of [Mr A] and [Mr B]. She will be targeted as she has been accused of sympathising with and practising sorcery.[12]

(c)As a person accused of sorcery, she has a ‘label that will stay’ with her wherever she is in PNG.[13]

(d)As a single woman in PNG she is at most risk of being accused of being a witch or a sorcerer.[14]  She fears she is at a greater risk being a female who is separated and has no male support.[15]

(e)Even if the applicant is not killed or tortured straight away upon her return, as soon as anything happens in the community, as an accused sorcerer she will be blamed.[16]

(f)In PNG it is not possible to move away from the community or tribe and as a woman she is particularly vulnerable. As an accused sorcerer that label will follow her everywhere. As such, she will face harm in all areas of PNG as accused sorcerers are killed, regardless of where they live. In PNG, tribes and villages can easily communicate with each other and information regarding who has been practising or killing people with black magic will spread.[17]

(g)There is no protection in PNG for people who are accused of sorcery because all are scared. The authorities in PNG cannot protect her as they believe this matter would not be dealt with by the law but resolved between local tribes and villages. The authorities will be even less likely to protect her as she is a woman.

(h)She cannot relocate to any other area in PNG as she has been labelled a sorcerer.[18]

[10] Protection Visa Assessment dated 23 August 2016 at [6]; Dept File No: [Number 1] Doc ID: [Number 2]; AAT File No 1801300 Doc ID No [Number 3].

[11] Applicant’s Statutory Declaration dated 21 July 2021 at [35].

[12] Protection Visa Assessment dated 23 August 2016 at [6].

[13] Applicant’s Statutory Declaration dated 21 July 2021 at [36].

[14] Ibid at [37].

[15] Protection Visa Assessment dated 23 August 2016 at [6].

[16] Applicant’s Statutory Declaration dated 21 July 2021 at [38].

[17] Protection Visa Assessment dated 23 August 2016 at [6].

[18] Ibid.

Applicant’s supporting documentation

23.The applicant first submitted her claims for protection when she applied for a protection visa on 6 May 2016 and was then interviewed about her claims on 10 May 2016 at [an Immigration Detention Centre]. The applicant provided the following written material in support of her visa application:

(a)Part B - Application for a Safe Haven Enterprise Visa (Persons included in this application and family composition) dated 6 May 2021.[19]

[19] Department File No: [Number 1]; Folio: 38 – 44.

(b)Part C - Application for a Safe Haven Enterprise Visa (Personal details for each person included in this application) form dated 6 May 2016.[20]

[20] Ibid, Folio: 23 – 37.

(c)Cover letter from [Ms G] of [Visa and migration firm] dated 6 May 2016.[21]

(d)Applicant’s signed statement dated 6 May 2016 summarising her protection claims (applicant’s statement).[22]

(e)Copy of applicant’s biodata page of her PNG passport valid from [2015] to [2020].[23]

(f)Copy of applicant’s [Airline] Passenger Card dated December 2011 and various [Membership] Cards for applicant, her son ([Mr H]) and her daughter ([Ms I]).[24]

(g)Various photographs of applicant’s son ([Mr H]) with annotations about his attack and associated facial injuries.[25]

(h)Post Interview Legal Submissions by [Ms G] of [Visa and migration firm] dated 19 May 2019 in support of the applicant’s protection claims.[26]

(i)Copy of Department’s primary notification letter and decision record dated 23 August 2016.

(j)Handwritten discharge summary report in relation to her son’s injuries. 

(k)Legal Submissions supporting the applicant’s protection claims and country research prepared by [Ms I] of [Law firm] dated 22 July 2021.

(l)Applicant’s Statutory Declaration supporting her protection claims dated 21 July 2021.

[21] Ibid, Folio: 20

[22] Ibid, Folio: 22.

[23] Ibid, Folio: 25.

[24] Ibid, Folio: 24.

[25] Ibid, Folio: 47 – 48.

[26] Ibid, Folio: 62 – 67.

Applicant’s evidence

24.The applicant’s evidence was that she was born on [Date] in [Village], [Town 1] in the Eastern Highlands of PNG. She claims to be Melanesian ethnicity and a Baptist by faith.[27] The applicant’s father has died, but her mother remains living in Port Moresby in PNG. The applicant’s evidence to the Tribunal was that her father had [a number of] wives. As a result, she claims to have [a number of] siblings,  [brothers] and [sisters].

[27] Applicant’s signed statement dated 6 May 2016 at [3]-[6]; Dept File No: [Number 1]; Folio: 22.

25.The applicant’s evidence was that she completed year [Number] at school. The applicant was married soon after completing school and has two biological children and two adopted children ([Ms J], the applicant’s [Relative 1]’s [child], and [Ms K], her [Relative 2]’s [child]).  As a result of being married at an early age the applicant did not attend any further education and did not work.

26.The applicant separated from her husband in or about 2005.[28]

[28] Applicant’s signed statement dated 6 May 2016 at [8].

27.In or about 2015, the applicant was living in [Suburb], Port Moresby (close to [Building]) with her sister [Ms C] and her husband [Mr L] together their children, and her mother and aunty, [Ms F]. The applicant’s evidence was initially that her mother ran a small store in the market in which the applicant worked from time to time. It was her evidence that it took her approximately 20 minutes to get to the stall.  

28.The applicant’s evidence to the Tribunal was that a young girl died in their community in [Suburb], Port Moresby. Her evidence was that the young girl and her family were also from [Town 1] in the Eastern Highlands but from [Tribe 4], a different tribe to the applicant. The applicant stated that she did not know how the the girl died but stated that because of her death the parents of the girl and her relatives approached the applicant and accused her of sorcery (the first incident). Other than their tribe, the applicant was not able to identify the young girl or her family.  The applicant’s evidence was that after being accused of sorcery she remained at home in fear. Her evidence was that once the accusation of sorcery is made it becomes true within the community. She claimed that it was hard for her to leave the house. When asked about walking to work, the applicant stated that her mother’s store was close to the house. Nevertheless, it was the applicant’s evidence that she was not harmed after being accused of sorcery by the girl’s parents.

29.The applicant evidence was that after the first incident, two men from [Mr L]’s hometown of [Town 2] died. Both men were leaders of [Tribe 1], known as [Mr A] and [Mr B]. After their deaths people from their family and their tribe started accusing [Mr L]’s tribe of killing them with black magic.[29] 

[29] Ibid at [11].

30.[Ms D] and [Mr E], [Mr L]'s siblings, were specifically accused of killing them. As a result, they travelled from [Town 2] to Port Moresby to live in [Mr L]’s house with the applicant. The applicant’s evidence was that [Ms D] and [Mr E] were in hiding as they were afraid of what may happen to them, having been accused of being sorcerers. However, people became aware that they were living in the house in [Suburb], Port Moresby and soon word spread within the community and people were accusing everyone, including [Ms C], [Mr L], [Ms F] and the applicant of being sorcery sympathisers and practitioners of black magic. They accused them as they thought they were protecting two sorcerers.[30]

[30] Ibid at [14]-[15].

31.The applicant claimed that the people in their community treated them very poorly. Her evidence was that they were harassed, threatened, and discriminated against. They were fearful because in PNG people who are accused of sorcery are tortured or killed. Her evidence was that after [Ms D] and [Mr E] left [Town 2], two women from [Mr L]'s tribe were killed as they were also accused of using black magic to kill [Mr A] and [Mr B]. One of the women was burnt and the other chopped into pieces and thrown into the river.[31]

[31] Ibid at [16].

32.The applicant claimed that relatives of [Mr A] and [Mr B] (relatives of the deceased) travelled from [Town 1] to the house in Port Moresby looking for [Ms D] and [Mr E]. The applicant’s evidence was that she was at work at the shop and not at home at the time of their visit. However, she stated that she could see them arrive and recognised some of the relatives of the deceased. Her evidence was that they spoke to [Mr L] for approximately 30 minutes, demanding that [Ms D] and [Mr E] come out. The applicant claims that two or three days later the relatives of the deceased returned, however, her evidence was that nobody was home when they arrived. The applicant stated that she was not at home and did not see them arrive. Her evidence was that her mother was working in the shop and saw them arrive. The applicant claimed that she was informed of their arrival by her mother and others in the community.

33.Finally, the applicant’s evidence was that the relatives of the deceased turned up at the house a third time. Her evidence was that they spoke to [Mr L] and told him to send [Ms D] and [Mr E] back to [Town 1]. Once again [Ms D] and [Mr E] were not at home. The relatives of the deceased then told those in the community standing and watching to warn [Ms D] and [Mr E] to return to [Town 1].

34.The applicant arrived in Australia [in] October 2015 on the tourist visa, accompanied by her sister [Ms C],[32] sister in law [Ms D],[33] brother in law [Mr E][34] and her aunty [Ms F][35] .

[32] AAT Case No 1613951.

[33] AAT Case No 1616892.

[34] AAT Case No 1613954.

[35] AAT Case No 1811034.

35.The applicant’s evidence was that on 16 October 2015, her son was attacked in [Suburb], Port Moresby by people from [Tribe 1].[36] The applicant’s evidence was that he was returning from school, which is approximately a 20 minute walk from his home. Her son was hospitalised. She believes her son was attacked due to her issue. His [Body part] was slashed, and [detail deleted] and he required medical treatment.[37] The applicant provided copies of photos of her son displaying injuries as claimed. The applicant claims that as a result of the attack on her son she has an added fear of returning to PNG.

[36] Applicant’s signed statement dated 6 May 2016 at [3]-[6]; Dept File No: [Number]; Folio: 22.

[37] Applicant’s Protection Visa Interview per Protection Visa Assessment dated 23 August 2016 at [7]; Dept File No: [Number 1] Doc ID: [Number 4].

36.The applicant fears that if she returns to PNG she will be tortured and killed by members of [Tribe 1] or by the families of [Mr A] and [Mr B]. She will be targeted as she has been accused of sympathising with and practising sorcery.

37.The applicant’s evidence was that she fears she is at a greater risk being a female who is separated and has no male support.

38.The applicant’s evidence was that she will face harm in all areas of PNG as accused sorcerers are killed, regardless of where they live. In PNG, tribes and villages can easily communicate with each other and information regarding who has been practising or killing people with black magic will spread.

39.The applicant’s evidence was that the authorities in PNG cannot protect her as they believe this matter would not be dealt with by the law but resolved between local tribes and villages. The authorities will even be less likely to protect her as she is a woman.

40.The applicant’s evidence was that she cannot relocate to any other area in PNG as she has been labelled a sorcerer.

COUNTRY INFORMATION

41.In accordance with the Ministerial Direction No.84 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has considered the DFAT Country Information Report on Papua New Guinea dated 10 February 2017 (the DFAT Report). In particular, the Tribunal has taken into consideration those parts of the DFAT Report relevant to the applicant’s claims as reproduced in Attachment B to this decision.

ASSESSMENT OF CLAIMS AND FINDINGS

42.The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.

Credibility

43.When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety 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 will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is considered in these findings.

44.The mere fact that a person claims fear of persecution for a 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 the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[38]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[39]

[38] Section 5AAA of the Act.

[39] 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.

45.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[40] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted. 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.[41] However, such a benefit should 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.

[40] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p482.

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

46.In this case, the applicant’s personal and cultural background needs to be considered in relation to her ability to engage in the legal process and to provide evidence to the Tribunal. The Tribunal acknowledges that the applicant has a low level of education and that she has had limited work experience. In addition, the applicant’s ability to provided cogent and coherent evidence needs to be considered considering her cultural background and norms. 

Accepted facts

47.Based on the oral evidence provided at the hearing, together with the statement and statutory declaration and visa application, the Tribunal accepts and finds that:

(a)The applicant was born on [Date] in [Village], [Town 1] in the Eastern Highlands of PNG.

(b)The applicant is of Melanesian ethnicity and is a Baptist by faith.[42]

(c)The applicant’s father has died, and her mother continues to live in Port Moresby, PNG. 

(d)The applicant’s father had [wives] by which she has [siblings], [brothers] and [sisters].

(e)The applicant completed year [Number] at school.

(f)The applicant was married soon after completing school.

(g)The applicant has two biological children and two adopted children ([Ms J], the applicant’s [Relative 1]’s [child] and [Relative 2], her [Relative 2]’s [child]). 

(h)The applicant has limited education and limited work experience.

(i)The applicant separated from her husband in or about 2005.[43]

[42] Applicant’s signed statement dated 6 May 2016 at [3]-[6]; Dept File No: [Number 1]; Folio: 22.

[43] Applicant’s signed statement dated 6 May 2016 at [8].

Applicant’s refugee claim

Relevant grounds

48.The applicant claims to have a well-founded fear of persecution within the scope of s.5J(1) of the Act as a member of a particular social group (PSG), that is, as a single and/or divorced woman in PNG, and as a woman having been accused of sorcery and/or perceived as a woman sorcerer in PNG. 

49.Section 5L of the Act[44] stipulates that an applicant will be treated as being a member of a particular social group if:

(a)The applicant has a characteristic that is shared by each member of the group; and

(b)The applicant shares or is perceived as sharing the characteristic; and

(c)If any of the following apply:

(i)       the characteristic is shared by each member of the group;

(ii)     the characteristic is so fundamental to a member’s identity or conscience, the applicant should not be forced to renounce it;

(iii)    the characteristic distinguishes the group from society; and

(d)The characteristic is not fear of persecution.

[44] In Applicant A (1997) 190 CLR 225 re: Dawson J.

50.The applicant claims that having been accused and/or perceived as a sorcerer is a characteristic that is so fundamental to her identity that she cannot renounce it. The Tribunal accepts that as a woman accused of sorcery or perceived as being a sorcerer the applicant is a member of a PSG pursuant to s.5L of the Act.

Applicant’s well-founded fear

51.In Chan v MIEA[45] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[46]

[45] (1989) 169 CLR 379 at 396.

[46] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

52.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.

53.However, to hold a ‘well-founded fear of persecution’ on an objective basis. the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[47]

“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

[47] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.

54.In MIEA v Guo, the Court stated that:[48]

‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

[48] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

55.The applicant claims that, in the event she is returned to PNG, there is a real chance she will suffer serious harm because of being accused of being, or being perceived as, a sorcerer. For the reasons expressed below, the Tribunal accepts that the applicant holds a subjective and an objective fear of persecution for a reason mentioned in s.5J(1)(a) of the Act as claimed. 

Applicant as a sorcerer

56.The applicant’s evidence was that she had been labeled a witch in 2014 following the death of a girl in the applicant’s community in [Suburb], Port Moresby. The young girl and her family were from [Town 1] in the Eastern Highlands but from [Tribe 4], a different tribe to the applicant. The applicant claimed that after her death, the girl’s parents and relatives approached the applicant and accused her of sorcery. The applicant’s evidence in relation to this incident was vague and lacking any detail. The applicant was not able to tell the Tribunal precisely when she was accused of sorcery. In addition, she was not able to tell the Tribunal the name of the girl or her family. In addition, she was not able to provide any specific detail of their visit, such as the approximate time and day they visited or how many people came to her house.

57.The applicant’s evidence was that once the accusation of sorcery is made it becomes true within the community. Nevertheless, is was her evidence that she was not harmed after the incident. Nevertheless, she claimed that it was hard for her to leave the house. However, it was her evidence that she continued to walk to work, and to work within the community in her mother’s stall.

58.Therefore, in circumstances where the applicant’s evidence is vague and lacking in any detail and in circumstances where she continued to live and work in the community until her departure to Australia [in] October 2015 without being harmed, the Tribunal does not accept the applicant’s evidence that she was accused of being a witch in 2014 as claimed. As such, the Tribunal finds that there is no real chance that she will be seriously harmed if she is returned to PNG because of being accused of being a witch in 2014.

59.The applicant claimed that she feared being harmed by members of [Tribe 1] and family members of two [Tribe 1] leaders who died in 2015, [Mr A] and [Mr B]. The applicant’s sister in law and brother, [Ms D] and [Mr E], were accused killing the men with black magic. As a result, [Ms D] and [Mr E] fled [Town 2] province to live in [Suburb], Port Moresby with [Ms C] and [Mr L] and their children at the time that the applicant and her children were also living at the same house. The applicant claims that members of [Tribe 1] have travelled to [Suburb], Port Moresby looking for [Ms D] and [Mr E] and accusing them of being sorcerers.  As a result, the applicant claims that she has been accused of sympathising with them and practising sorcery.    

60.The Tribunal (differently constituted) accepted and found that [Ms D] and [Mr E] were accused of being sorcerers by [Tribe 1] as claimed and as such did flee [Town 2] province to live with [Ms C] and [Mr L] in [Suburb], Port Moresby as claimed.[49] While [Ms D] has withdrawn her application for a protection visa,[50] the Tribunal (differently constituted) has found that there is a real chance that [Mr E] will be seriously harmed if he is returned to PNG.[51] Accordingly, consistent with the finding of the Tribunal (differently constituted), the Tribunal accepts that [Ms D] and [Mr E] were accused of sorcery as claimed.

[49] AAT Case No 1616892 & No 1613954.

[50] AAT Case No 1616892.

[51] AAT Case No 1613954.

61.The country information[52] states that there is strong belief throughout PNG, in both rural and urban areas, in the power of the supernatural. The applicant’s evidence is consistent with the country information, which states that in some circumstances when a person dies prematurely or by unexplained causes, someone is accused of having caused the death by witchcraft and is attacked by the community by witchcraft as a ‘payback.’[53] Its reported that the identification of people as witches is arbitrary and subjective. The accusation may be motivated by jealously or greed or alternatively it may be levelled against those who do not conform, the elderly or the disabled.

[52] DFAT Report at p.18.

[53] Ibid.

62.The Tribunal (differently constituted) has found that [Mr E] and [Ms D] were under continued threat from [Tribe 1] tribesmen whilst they continued to reside in Port Moresby with the applicant.  The applicant’s evidence was that she was not at home when the tribesmen attended the house looking for [Mr E] and [Ms D]. From the applicant’s evidence given to the Tribunal, there did not appear to be any direct allegation made by the tribesmen against the applicant that she was a sorcerer. However, the applicant’s evidence was that the community in which she lived was relatively small. The people in the community knew where she lived and were aware that the [Tribe 1] tribesmen had been to the house accusing them of harbouring sorcerers. The Tribunal notes that the applicant worked in her mother’s stall located close to her home. In such circumstances the Tribunal accepts the applicant’s evidence that the community knew where she lived and that the [Tribe 1] tribesmen had visited her house looking for [Ms D] and [Mr E], accusing them of witchcraft. In such circumstances, the Tribunal accepts that the applicant was accused of living with and harbouring sorcerers and as a result accused of being involved with witchcraft and sorcery as claimed.

63.In addition, consistent with the applicant’s claims, the country information notes that the police are reluctant to intervene in witchcraft cases due to the fact that as members of the community they themselves may be subjected to retributive attacks or themselves be afraid of witchcraft.[54]  The DFAT Report assesses that those accused of sorcery in PNG face a high risk of societal discrimination and violence, which may include being illegally detained, beaten, tortured, forced to leave their community or killed.[55]  

[54] DFAT Report at p.19.

[55] Ibid.

64.The applicant claims that as a female and as a single mother she has no protection. As a result, there is a real chance that she would be seriously harmed because of having been accused of or imputed with engaging in sorcery as a result of harbouring [Mr E] and [Ms D].  The country information reports that despite official efforts to promote women, gender discrimination exists at all levels in PNG and that cultural barriers continue to place significant limits on the extent of female participation.[56] Its reports that the level of violent crimes against women in PNG is extremely high. It is reported that due to longstanding traditional values and views on gender, women in PNG face a high risk of societal discrimination.[57] DFAT assesses that women face a high risk of gender based violence and that they are unlikely to be able to avail themselves of any adequate protection or support. The Tribunal notes that the country information states that women are particularly targeted in being accused of witchcraft or sorcery.[58]

[56] DFAT Report at p.17.

[57] Ibid.

[58] Ibid.

65.Based on the country information, the Tribunal accepts that the applicant is vulnerable as a woman in PNG being accused of witchcraft. The applicant claimed that her son had been attacked by [Tribe 1] tribesman as result of her having been accused of witchcraft. The applicant provided pictures of her son injured with severe cuts to his [Body part] claiming them to be the injuries inflicted on him because of her having been accused of sorcery. The Tribunal was not able to verify the circumstances in which the applicant’s son was injured as claimed.  The Tribunal put to the applicant that Port Moresby can be a dangerous and violent place with many gangs roaming the streets, particularly after dark, to which the applicant agreed. Nevertheless, the applicant maintained that her son had been injured for the reason as claimed. As such, in the absence of any evidence to the contrary, the Tribunal accepts that the applicant’s son was injured by [Tribe 1] tribesmen as claimed.

66.Therefore, based on the country information and the applicant’s evidence, the Tribunal accepts that the applicant was accused of harboring accused sorcerers as claimed and as a result was imputed as practising witchcraft or sorcery. The Tribunal accepts that as a single woman in PNG, there is a real chance she would suffer serious harm as a result of being accused of sorcery as claimed. 

67.Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s.5J(1)(a) and s.5J(1)(b) of the Act and finds that the applicant is a refugee pursuant to s.5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s.36(2)(a).

CONCLUSION

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

DECISION

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

Jason Pennell

Senior Member

ATTACHMENT A -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

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

…

Attachment B

DFAT Country Information Report Papua New Guinea – 10 February 2017

HUMAN RIGHTS FRAMEWORK

2.29    PNG’s Constitution has numerous references to human rights, and gives the Supreme Court powers to initiate investigations into alleged human rights violations. PNG has ratified six of the major UN conventions on human rights, namely: the International Convention for the Elimination of All Forms of Racial Discrimination (1982); the International Convention on the Rights of the Child (1993); the International Convention on the Elimination of All Forms of Discrimination Against Women (1995); the International Covenant on Economic, Social and Cultural Rights (2008); the International Covenant on Civil and Political Rights (2008); and the International Convention on the Rights of Persons with Disabilities (2013).

2.30    However, there is limited human rights promotion or public outreach to educate people in PNG on their rights and freedoms. PNG citizens would rarely be aware of their options to report allegations of human rights abuses. Traditional collectivist social norms and wantok obligations infuse administrative behaviour and often dominate notions of human rights, regardless of what the law prescribes.

2.31    In May 2016, the United Nations Human Rights Council’s Universal Periodic Review (UPR) examined PNG’s human rights record. The UPR made 161 recommendations, to which PNG accepted 108 and noted 53. Major areas of concern raised during the UPR were gender-based violence and sexual violence, witchcraft and sorcery-related violence, death penalty, lesbian, gay, bisexual, trans and intersex (LGBTI) rights, and police violence. In its statement to the UPR, PNG identified gender-based violence and sexual violence as its major human rights challenge. PNG also highlighted a number of human rights achievements, including the passing of human rights-related legislation and the ratification of a number of human rights treaties.

National Human Rights Institution

2.32    PNG does not have a National Human Rights Institution (NHRI) complying with the Principles relating to the status of national institutions (the Paris Principles). Local and international commentators have frequently expressed their concern that this represents a considerable gap in PNG’s human rights infrastructure.

2.33    While the Ombudsman Commission has assumed a whole-of-government role in terms of promoting awareness and strengthened observance of human rights, it is not resourced for general human rights work. It is also restricted in that it is only able to pursue complaints on human rights related to governmental bodies – for example, it cannot pursue complaints against private companies, but can only refer them to relevant ministries.

SECURITY SITUATION

2.34    In December 2013, PNG launched a National Security Policy, ‘Safe, Secure and Prosperous Papua New Guinea’, aimed at safeguarding PNG’s national interests. The policy focused on internal and external threats to PNG, including law and order, maritime and land border security, gender-based violence, and corruption, and seeks to enable better coordination between government agencies with security responsibilities. PNG is generally regarded as a country at low risk of terrorist attack.

Law and Order

2.35    While varying in degree according to location, the overall crime rate in PNG is extremely high and is characterised by high levels of violence. Crimes occur randomly, and are particularly prevalent in Port Moresby and other major cities; the settlement areas of towns and cities are particularly dangerous. Machetes and firearms are often used in assaults and thefts. Car-jackings, armed robberies, assaults (including sexual assaults) and stoning of vehicles are common. The types of crimes experienced in PNG vary significantly by region and by gender. Gender-based violence and crimes against children occur regularly, and total crime victimisation for women and children are likely to be heavily under-reported (see also ‘Women’).

Tribal Violence

2.36    Tensions between and within PNG’s hundreds of different groups occurs frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.

2.37    Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country’s population. Conflicts between various groups are complicated by grievances over access to royalties, benefits, and compensation associated with resource extraction projects in the country, whether mining, gas extraction or logging. DFAT is aware of cases in recent years where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby. Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs. In December 2014, the Internal Displacement Monitoring Centre estimated there were about 22,500 people displaced within PNG because of tribal warfare (and natural disaster). In particularly serious cases, provincial authorities may request the deployment of the Papua New Guinea Defence Force (PNGDF) and/or the Royal Papua New Guinea Constabulary (RPNGC) Mobile Squads. These forces are known for taking a blunt approach to restoring security, including through burning villages and holding village leaders for ransom until perpetrators have given themselves up.

2.38    The Inter-group Fighting Act (1977) prohibits inter-tribal fighting. Section 11 (2) of the Act provides for a punishment of between three and six years’ imprisonment where a person has taken part in inter-tribal fighting that has resulted in death. Section 11 (3) of the Act provides for a punishment of between 20 to 30 years’ imprisonment if a Court determines that an individual is a principal offender or a leader of a fight that results in death. While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they will be subjected to ‘payback’ violence (see ‘Glossary’) if they testify.

Women

3.32 Article Five of the Constitution calls for equal participation by PNG’s women citizens in all political, economic, social and religious activities. The Office for the Development of Women, which sits within the Ministry of Religion, Youth and Community Development, has responsibility for women’s issues. The National Council of Women Act (2010) mandates the National Council of Women (NCW) to promote equal participation of women in society, and to support the government to eliminate all forms of discrimination against women. In addition to the NCW, several other civil society organisations are also dedicated to improving the situation of women in PNG. A number of women hold senior positions in business, the professions, and the civil service. At the time of publication, two government departments had female Departmental Secretaries.

3.33   Despite official efforts to promote women, gender discrimination exists at all levels in PNG, and cultural barriers continue to place significant limits on the extent of female participation, including in politics (see above). In 2014, PNG ranked 158 out of 188 counties surveyed on the UNDP’s Gender Inequality Index (188 being the worst).

3.34   Levels of violent crime against women are extremely high across PNG. Domestic or family violence is particularly endemic. The precise number of women who experience violence at the hands of a partner or family member is unknown – statistics are unreliable, and there is a social stigma in PNG about reporting. Human Rights Watch (HRW) published a report on family violence in PNG in November 2015 that found that the problem continued to be pervasive throughout the country. An earlier survey, published in 2013, found that 80 per cent of men in Bougainville reported that they had perpetrated physical and/or sexual violence against a partner. A March 2016 report from Medicins Sans Frontieres (MSF) detailed how a dire lack of protection mechanisms, a weak justice system and a culture of impunity endangered the health and lives of victims of violence even if they managed to reach medical care.

3.35   The November 2015 HRW report found that police and prosecutors rarely pursued criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Police often demanded money from victims before they would act, or simply ignored cases occurring in rural areas. Police appeared reluctant to refer survivors for protection orders, and survivors who sought protection orders frequently encountered delays in the courts. When police did get involved in family violence, they typically mandated mediation and reconciliation for the couples involved.

3.36   The November 2015 HRW report found there was a dire lack of services for people requiring assistance after suffering family violence. Most areas had no safe houses, and no area had enough. Qualified counsellors were largely non-existent, case management was rarely provided, legal aid was almost entirely absent, and there was no safety net to assist survivors, particularly those with dependent children, who needed temporary support and assistance to leave their abusers and become financially independent.

3.37   The Family Protection Act (2013) makes family violence a crime, punishable by up to two years and/or a fine of PGK6,000 (AUD2,750). The Act also created new mechanisms, including establishing Family and Sexual Violence Units (FSVUs) in police stations and Family Support Centres in hospitals, to protect and assist victims of family violence. As of the publication date, 15 FSVUs were operational nationwide, staffed primarily by female RPNGC officers. All were under-resourced, and only able to operate for limited hours despite considerable demand for their services. Although the Act came into force in March 2014, as of the publication date it was yet to be fully implemented.

3.38   A number of factors act as barriers to the full participation of women in the workforce in PNG. These include cultural stigma against women’s education or employment; gender discrimination; nepotism; the risk of violence and sexual abuse; high levels of female illiteracy; and low levels of female education. Restrictions to women achieving a good education include underage marriage, unwanted pregnancies, and lack of financial support. DFAT assesses that women across PNG have a high risk of societal discrimination due to long-standing traditional values and gender roles that restrict their ability to participate fully in the community and workforce.

3.39   DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in the Highlands provinces are at particular risk, although violence against women occurs nationwide. Women subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.

Sorcery and Witchcraft Accusations

3.46   There is a strong belief throughout PNG in the power of the supernatural, in particular the ability of ‘witches’ or ‘sorcerers’ to use magic. This belief is prevalent in both rural and urban areas. In some instances, when a person dies (generally of unexplained causes or prematurely), someone is accused of having caused the death by witchcraft and is attacked by the community as ‘payback’ (see ‘Tribal Violence’).

3.47   The identification of individuals as witches or sorcerers is arbitrary and subjective. The accusation may be motivated by considerations such as jealousy or greed (for example, seeing an opportunity to obtain the property of the accused); or aimed against those who do not fully fit, such as outsiders, the elderly, the disabled, or the marginalised, particularly women.

3.48   Police are frequently reluctant to intervene in witchcraft cases. They themselves are members of the community and might face retributive attacks or may be themselves afraid of the alleged sorcery or witchcraft tool. Large and highly agitated groups of people generally carry out sorcery-related killings. In some cases, police have reported that they lacked the manpower to intervene against large crowds. Human Rights Watch reported in 2015 that the risks to people accused of sorcery were so real and severe that the main approach used by NGOs seeking to help them was to relocate the accused to another community (see also ‘Internal Relocation’).

3.49   In May 2013, PNG repealed the Sorcery Act (1971). Section 16 of the Act had allowed for sorcery as provocation to be used as a defence in cases of sorcery-related murder. At the same time, the government changed the law to allow for the execution of those convicted of wilful murder of a person because of accusation of sorcery, aggravated rape, and robbery (see ‘Death Penalty’). The actions came after a series of brutal public killings, including the burning alive of a 20 year old woman in a village market in February 2013, and the beheading of a woman accused of black magic in April 2013. On 21 July 2015, PNG’s National Executive Council endorsed a Sorcery and Witchcraft Accusation National Action Plan aimed at reducing sorcery-related violence. The plan, allocated a budget of PGK3 million (AUD1.44 million) in 2016, focuses on five strategic areas: care and counselling; advocacy and communications; legal and protection; the health sector; and research. At the time of publication, however, the funds approved for the implementation of the National Action Plan were yet to be released. DFAT assesses that those accused of sorcery or witchcraft in PNG face a high risk of societal discrimination and violence. This discrimination may include being illegally detained, beaten or tortured, having their possessions stolen, being forced to leave their communities, or being killed.