1807672 (Refugee)

[2022] AATA 4089

1807672 (Refugee) [2022] AATA 4089 (1 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Timothy Madigan

CASE NUMBER:  1807672

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:James Lambie

DATE:1 August 2022

PLACE OF DECISION:  Brisbane

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

(i)that the first, second, fourth, fifth and sixth named applicant satisfy s 36(2)(a) of the Migration Act; and

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

Statement made on 01 August 2022 at 1:43pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – single or separated women – victim of domestic violence – wife of tribal leader – imputed responsibility for payback compensation – fear of harm by tribal violence – tribal payback – high risk of payback based on tribal status – delay in applying for protection – delay in making claims of domestic violence – reliance on support of in-laws – widespread and systemic failure to properly protect women and girls from violence – withholding of state protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR 1
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
Randhawa v MILGEA (1994) 52 FCR 437
Subramaniam v MIMA (1998) VG310 of 1997
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423

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 Home Affairs on 13 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Papua New Guinea, applied for the visas on 23 May 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

   Criteria for a protection visa

3. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

4. 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.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

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

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

   Mandatory considerations

8. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF Claims and evidence

9. The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background:

10. The applicants are nationals of Papua New Guinea. [The first applicant] is [age] years old and the mother of the secondary applicants. [The second applicant] is [age] years old, [the third applicant] is [age] years old, [the fourth applicant] is [age] years old, [the fifth applicant] is [age] years old, [the sixth applicant] is [age] years old, and [the seventh applicant] is [age] years old.

11. [The first applicant] first arrived in Australia [in] April 2008 pursuant to a temporary business (short stay) visa. She has departed and returned to Australia approximately 13 times since her first arrival. This included travels to and from Papua New Guinea to visit [the second applicant] in Australia. She last arrived in Australia [in] January 2017 pursuant to a visitor visa and has remained onshore since.

12. [The second applicant] first arrived in Australia [in] December 2012 pursuant to a tourist visa. He has travelled to PNG twice to visit his family for Christmas in 2015 and 2016. He travelled to and from Australia in July 2014 to an unknown destination for unknown reasons. He last arrived in Australia [in] January 2017 pursuant to a medical treatment visa and has remained onshore since.

13. [The third applicant], [the fourth applicant] and [the fifth applicant] first arrived in Australia [in] January 2014 pursuant to visitor visas. They departed and returned to Australia twice. They last arrived in Australia [in] April 2017 pursuant to visitor visas and have remained onshore since.

14. [The sixth applicant] first arrived in Australia [in] December 2012 pursuant to a visitor visa. She has departed and returned to Australia seven times. She last arrived in Australia [in] January 2017 pursuant to a visitor visa and has remained onshore since.

15. [The seventh applicant] first arrived in Australia [in] February 2015 pursuant to a visitor visa. He departed Australia [in] February 2015 and returned [in] March 2017 pursuant to a visitor visa. He has remained onshore since.

16. The applicants applied for a protection visa on 23 May 2017 and the application was subsequently refused by a delegate of the Minister for Home Affairs in a decision made on 13 March 2018.

17. The applicants applied for merits review of the delegate’s decision on 21 March 2018.

    Claims:

18. The applicants’ claims are summarised in their protection visa application forms, written claims, and the delegate’s decision. [The first applicant] and [the second applicant] have made their own claims for protection. [The third applicant], [the fourth applicant], [the fifth applicant], [the sixth applicant] and [the seventh applicant] have not made their own claims and they have applied for protection on the basis of being members of the same family unit as [the first applicant] and [the second applicant].

    Claims made by [the first applicant]

    Claims made in her protection visa application

19. [The first applicant] claims she is married to [Mr A], a [Occupation 1] and tribal leader in [Tribe 1] in Papua New Guinea. She claims that as a tribal leader, [Mr A] is responsible for providing compensation payments to other tribes in an effort to resolve tribal conflicts.

20. [The first applicant] claims that [Mr A] left his [business] to run in the 2007, 2012 and 2017 National Elections as the representative for the [Region 1] constituency.

21. [The first applicant] claims she and her family have witnessed riots at the compensation ceremonies.

22. [The first applicant] claims that following the 2017 National Election, violence erupted, and [Mr A] received death threats. She claims [Mr A] then went into hiding.

23. [The first applicant] claims she and her family are at risk of harm because of [Mr A]’s political career and them being the wife and children of a tribal leader.

24. [The first applicant] claims she has witnessed tribal violence and received threats from enemy tribes in Port Moresby and her home district, [District 1], [Province 1].

25. [The first applicant] claims there is regular tribal payback violence between enemy tribes in [Mr A]’s home region of [Region 1].

26. [The first applicant] claims that in 2010, she and two of her sons were ambushed by an enemy tribe on their way to Port Moresby after visiting the highlands.

27. [The first applicant] claims she and her family have hired young men to constantly escort and watch over them.

28. [The first applicant] claims her parents and siblings have been displaced by the tribal war in [District 1].

    Claims made in [the first applicant]’s interview on 23 January 2018

29. [The first applicant] claims she has heard from [Mr A] and he is currently living with them in Australia as the holder of a tourist visa. She claims [Mr A] plans to return to PNG in the near future to continue his responsibilities as a tribal leader, continue his political career and re-start his [business].

30. [The first applicant] reiterated her claims that she fears [Tribe 1], and not her parents’ tribes’ enemy tribes.

31. [The first applicant] claims women and children are specific targets within the tribal payback system.

    Claims made in [the first applicant]’s statutory declaration of 29 September 2021

32. [The first applicant]’s statutory declaration, sworn on 29 September 2021, outlines new claims.

33. [The first applicant] claims that [Mr A] committed acts of violence against her during their relationship. She claims [Mr A] is a drunkard and a womaniser, and he began mistreating her in 2001 after [the second applicant] was born. She claims he abused her physically, emotionally and mentally.

34. [The first applicant] claims she remained in the relationship because in PNG culture, women belong to their husband and once they leave their family home to marry their husband, they are required to stay in the marriage no matter what.

35. [The first applicant] claims she has gone to work with a black eye and broken face and head after he smashed bottles on his head.

    Claims made by [the second applicant]

36. [The second applicant]’s claims are the same as [the first applicant]’s. He made the following claims at his protection interview on 23 January 2018:

37. [The second applicant] claims he fears he will be forced to participate in tribal reconciliation and compensation ceremonies, because he is the eldest son and will be required to eventually become a tribal leader.

38. [The second applicant] claims he will be killed as payback for the conflict between his tribe and the enemy tribe, as well as for being the eldest son of [Mr A], a current tribal leader.

    Evidence:

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

    (a)the applicants’ protection visa application form, which was lodged on 23 May 2017;

    (b)the applicants’ identity documents provided to the Department, being their passports;

    (c)the protection visa decision record dated 13 March 2018 (delegate’s decision);

    (d)the application for review form, which was lodged on 21 March 2018 and included a copy of the delegate’s decision;

    (e)all documents contained in Department file [number] concerning the applicants’ protection visa application, including:

    ·written submissions from the applicant’s former representative dated 14 January 2018, and the attached screenshot of a Facebook post; letter addressed to [the first applicant] from her father dated 20 August 2017; a letter from [a named] Police Station Commander in [District 1], [Province 1] dated 16 August 2017; and copies of [the fourth applicant], [the fifth applicant] and [the sixth applicant]’s flight e-tickets;

    ·a statutory declaration from [the first applicant], sworn on 5 January 2018, and the attached text messages, photographs and screenshots of Facebook posts;

    ·an email from the applicant’s former representative dated 7 February 2018 attaching evidence of [Mr A]’s candidacy in the 2017 PNG elections, including a 2017 campaign poster and a list of candidates published by the PNG electoral commission; and

    ·copies of [the second applicant]’s medical records.

    (f)Department file [number] concerning the applicants’ protection visa application;

    (g)all documents submitted to the Tribunal in support of the applicants’ application for review, including:

    ·post-hearing written submissions from the applicant’s representative dated 5 November 2021, which included the following attachments:

    oa letter from [named], Family Support Worker at [Organisation 1] dated 20 October 2021;

    oa letter from [named], Coordinator at the [named Supported Accommodation Service] run by [Organisation 2] (Queensland) dated 26 October 2021;

    oa letter from [a named] Retired Counsellor dated 19 October 2021;

    oa statutory declaration from [Ms B], [Mr A]’s late uncle’s wife, sworn on 1 November 2021;

    oa statutory declaration from [Mr C], [the first applicant]’s uncle, sworn on 2 November 2021;

    oa statutory declaration from [the second applicant], sworn on 4 November 2021;

    oa statutory declaration from [the third applicant], sworn on 4 November 2021;

    oa news article published by the Pacific Islands Report on 26 March 2017 entitled, “Fire Rips Through ‘Iconic’ Tabari Place Shopping Centre in Port Moresby”; and

    ocountry information reports on PNG published by the Australian Strategic Policy Institute in October 2014 and the University of Cambridge in June 2013.

    ·pre-hearing written submissions prepared by [the first applicant] dated 9 August 2021; and

    ·a statutory declaration from [the first applicant], sworn on 29 September 2021;  and

    (h)country information on Papua New Guinea, referred to below.

    Country of reference / receiving country:

40. The applicants claim to be citizens of Papua New Guinea. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Papua New Guinea is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

41. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing:

42. [The first applicant] appeared before the Tribunal on 7 October 2021 to give evidence and present arguments at an in-person hearing. The applicant was represented in relation to the review and her representative attended the hearing.

43. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa they must either be recognised as refugees or be persons entitled to Complementary Protection.

44. The Tribunal explained that under Australian law, to be a refugee they must have a well- founded fear of persecution in Papua New Guinea. This means the Tribunal must be satisfied that there is a real chance that they will face serious harm if they returned to Papua New Guinea. The harm must be directed at them for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

45. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk they will suffer significant harm if removed from Australia to Papua New Guinea. 

46. The Tribunal discussed their claims as summarised in the applicants’ protection visa application, written claims and the delegate’s decision. [The first applicant] confirmed that their claims as so summarised were not in dispute. The Tribunal asked her whether those claims were accurate and complete. [The first applicant] stated they were and that they did not need to change them.

47. The Tribunal took [the first applicant] to her statutory declarations of 5 January 2018 and 29 September 2021.  She confirmed that the contents of those statutory declarations were correct.  She confirmed that she has four siblings.  Her brother, [named], is a [occupation] living in [Australia].  Her brother, [named], is a [occupation] living in Port Moresby, while her youngest siblings, [named] live with her parents in [District 1], [Province 1] where they manage the family properties.

48. [The first applicant] told the Tribunal she met [Mr A] in June 1997 when they were both at [university].  They are both from [Tribe 1], in [Province 1].  They were married in January 2000 and settled in Port Moresby.  Their six children, also applicants in this matter, were born between [year] and [year].

49. [The first applicant] told the Tribunal that, in 2005, [Mr A]’s uncle died.  The uncle had been the leader of [Tribe 1], and the leadership of the tribe devolved to [Mr A].  From 2005 to 2012, [the first applicant], [Mr A], [the second applicant] and [the third applicant] travelled every Christmas to [Village 1], [Mr A]’s home village.  There [Mr A] arranged for the payment of compensation claims to neighbouring tribes in order to maintain the peace.  Compensation was by way of cash and pigs.  [Mr A] also made compensation demands of other tribes in respect of deaths and losses caused by them.  [The first applicant] told the Tribunal that she always found these visits very stressful because they were nearly always attended by violence and threats of violence by enemy tribesmen.

50. [The first applicant] took the Tribunal to paragraph 22 of her 2018 statutory declaration, as an example of the danger and fear she said she was seeking to described.  This was an occasion in 2010, when the family was returning to Port Moresby from [Village 1].  Shortly after leaving [Village 1], the road was blocked by a fallen tree and armed men emerged from the bushes.  [Mr A] reversed rapidly and called for help.  Members of [Tribe 1] arrived to assist and identified the attackers as members of [Tribe 2].  The attackers withdrew.  [The first applicant] told the Tribunal she learned from her tribesmen that [Tribe 2] had set up an ambush because they were offended that another tribe had been paid compensation ahead of them.

1. [The first applicant] told the Tribunal that the tribal violence extended into Port Moresby.  She took the Tribunal to an incident described at paragraph 27 of her 2018 statutory declaration.  She said the incident occurred in about 2005 or 2006, when a member of [Tribe 3] was killed and blame fell on [Mr A].  She said that her house in Port Moresby was besieged by several truckloads of [Tribe 3] tribespeople calling for the house to be burnt down and the occupants, who included the children and [Mr A]’s mother and sister, to be killed.  Armed neighbours were eventually able to drive the tribespeople away.  In neither case did law enforcement officers assist.

2. [The first applicant] told the Tribunal that, from 2012, visited Australia often because of [the second applicant’s] medical condition.  During this time, she lived with her sister-in-law, [Ms D].  In 2013 and 2014, the whole family came to Australia to spend Christmas with [the second applicant].  In 2015 and 2016, [the second applicant] was well enough to visit the family in Papua New Guinea for Christmas.

3. [The first applicant] told the Tribunal that, in January 2017, she returned to Australia with [the sixth applicant] to help [the second applicant] with his medical visa and to get him settled into school.  [Mr A] was at home with [the third applicant], [the fourth applicant], [the fifth applicant] and [the seventh applicant] (then aged [age]).  At around this time, [Mr A] told her that he intended to contest the 2017 general election.  Because [the seventh applicant] would need to be looked after, [Mr A] brought him to Australia in March 2017.  She said that [Mr A] returned to Papua New Guinea later that month.

4. [The first applicant] told the Tribunal that election campaigns in Papua New Guinea are always attended by violence.  Her 2018 statutory declaration and its attachments provide examples of some of the violence. She said that, shortly after [Mr A] returned to Port Moresby, she learned from her sister-in-law that he had received death threats and, very soon after, that his [business premises] had been burnt down.  She said she had not heard directly from [Mr A] at all.  She told the Tribunal that her sister-in-law, [Ms E], visited the family home in Port Moresby to find that [Mr A] had left, leaving [the third applicant], [the fourth applicant] and [the fifth applicant] (aged [teenaged and younger] at the time) to fend for themselves.  She told the Tribunal that none of her own attempts to contact [Mr A] were successful, but that [Ms E] eventually made contact with him and that [Mr A] arranged airline tickets for the children to travel to Australia.  The children arrived in Australia [in] April 2017.  She has spoken to him only very sporadically since and, on her account, only to facilitate his communication with the children or to exchange condolences on the death of relatives.

5. The Tribunal took [the first applicant] to her 2021 statutory declaration.  It noted that she makes detailed claims of domestic violence against [Mr A] and, at paragraphs 21 to 24, provides her explanation for the very significant delay in making these claims.  She told the Tribunal that, at the time she lodged her protection visa application, she had been considering making the domestic violence her primary claim but there were a number of reasons she refrained from doing so.  In addition to her dependence at the time on her sisters-in-law in Australia, which she thought would be jeopardised by her making these claims, she believed that [Mr A] would be denied entry to Australia, which would sever any connection the children had with him.  The Tribunal asked if she was saying she did not fear harm from [Mr A] while he was in Australia.  She said that [Mr A] was aware of the implications of domestic violence in Australia.  Those implications, she said, did not apply in Papua New Guinea.

6. The Tribunal asked [the first applicant] about the document at attachment “WA1” to her 2021 statutory declaration.  She said that this is a copy of a clinical note from the Port Moresby General Hospital.  She said that she has the original in her possession.

7. The Tribunal took [the first applicant] to paragraphs 31 to 38 of her 2021 statutory declaration concerning her relationship with [Mr F].  It asked if there was any record of the police attendance, or whether she had sought a domestic violence order.  She said that the police had left without doing anything and that, once she moved out of [Mr F’s] house in January 2020, she had no further contact with him.

8. [The first applicant] told the Tribunal that, if she returned to Papua New Guinea, she and the children would be living in fear.  She said that she feared being harmed, or even killed, by [Mr A] by reason of her leaving the marriage and then later committing adultery with [Mr F].  She said that her sons would be exposed to tribal violence and that the risk to them of ‘payback’ murder is very high because of [Mr A]’s tribal status.  She said that she and her daughters were at risk of kidnap, rape and murder in Papua New Guinea.

9. By summons dated [in] October 2021 directed to the Commissioner of the Queensland Police Service, the Tribunal sought production of any records of a complaint of domestic violence by [the first applicant] against [Mr F].  The response from the Queensland Police Service, dated [in] November 2021, attached a report dated 27 January 2020, with the notation:

   [Redacted] and [the first applicant] were in a relationship for approximately 3 months.  However, it is not enough for an intimate personal relationship.  They have not become enmeshed.  [The first applicant] is living with her 5 children at [redacted] house.  They no longer share a bedroom and [redacted] states the relationship ended some time ago and he wants her out since she does not have a job and does not contribute to the household. [Redacted] is of the opinion [the first applicant] only started a relationship with her [sic – him] for somewhere to stay.

   Verbal argument only.  Nil threats, nil property damage and insufficient time between the two to be considered a domestic relationship.  Advice given.

10. This report was sent to the applicant under cover of a letter pursuant to s.424A of the Act, noting possible inconsistencies with [the first applicant]’s evidence of physical and verbal abuse, and seeking a response.  The response was that described at the first dot point of paragraph 39(g) above and is discussed further below.

    Assessment of claims and evidence, and findings:

11. 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).

12. 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.

13. The Tribunal also accepts that ‘if the applicant's account appears credible, they 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.

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

15. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

    [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

16. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

    [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

17. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

18. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

19. There are two aspects of this application in respect of which delay is relevant.  These are the delay in making the protection visa application itself, and the delay in making the claims based on domestic violence.

20. In relation to the delay in making the protection visa application, the delegate noted that [the first applicant] “has claimed various incidents of violence following the 2012 elections… and that her husband’s sisters were already on a protection visa since 2008.”  She found that the delay in applying, together with [Mr A]’s willingness to return to Papua New Guinea raised concerns about the genuineness of her fear of persecution.

21. The explanation provided by [the first applicant] to the delegate was that she had felt morally obliged to support her husband in his professional and political ambitions and that it would have been to break up the family to apply sooner.  The delegate’s decision records:

    She added that she has tried to support her husband but enough is enough.  I [the delegate] asked how her relationship with her husband is now, given that she is applying to have all his children, including the eldest sons that are next in line to be leaders, here in Australia.  She stated that he was happy with it.

22. The additional material supplied by [the first applicant] to the Tribunal tends to support her explanation for the delay.  I consider it highly relevant that the purpose of most of the family’s travel to Australia between 2012 and 2017 was to support [the second applicant] through his medical treatment.  I also consider it highly relevant that, until September 2016, the family was intact and quite prosperous by the standards of Papua New Guinea.  [Mr A] had his own [business] and [the first applicant] had, until September 2015, been working as a [occupation] for [employer].   I consider that, even with the violence the family had witnessed and experienced before 2017, [the first applicant] considered their security situation to be, if not entirely satisfactory, tolerable by local standards.  The family had the financial and community resources to defend themselves.  Between September 2016 and April 2017, that situation changed significantly. 

23. It should be recalled (see paragraphs 53 and 54 above) that, when [the first applicant] last entered Australia [in] January 2017, she came with [the second applicant] and [the sixth applicant].  The purpose of the visit was to renew [the second applicant]’s medical visa and get him settled into school.  The other children were at home with their father.  [Mr A] brought [the seventh applicant] to Australia [in] March 2017 and then returned to contest the election.  [The first applicant] discovered that [Mr A] had effectively abandoned the other children later that month and was reunited with them in Brisbane [in] April 2017.  In these circumstances, with the situation in Papua New Guinea continuing to deteriorate in the lead-up to the election, I do not consider the delay in lodgement until 23 May 2017 to be inordinate.

24. The significant change that was claimed to have happened from September 2016 is the breakdown of the marriage by reason of domestic violence.  This was raised for the first time in [the first applicant]’s 2021 statutory declaration and the delay in making the new claims require explanation.  [The first applicant]’s evidence to the Tribunal is recounted at paragraph 55 above.  Her 2021 statutory declaration, at paragraphs 22 and 23 make clear the degree to which she was dependent on her husband’s mother and sisters through most of 2017 and, also the degree to which her own family was intermeshed with [Mr A]’s (her sister-in-law [Ms D] is married to her [uncle]).  Paragraphs 15 and 16 of the statutory declaration, which describe the minimal responses to her complaints of violence, support her claim that it was a very difficult matter to raise in the context of her dependency on [Mr A]’s family.

25. While the claim was not raised before the delegate, her evidence at that time did not exclude the possibility of such a claim (see the terms in which her evidence is summarised at paragraph 71 above) and I do not consider that the claim is inconsistent with her prior evidence.  I therefore accept that she chose not to advance the domestic violence claims because her dependence at the time upon [Mr A]’s family.  I also consider that the subsequent serious deterioration in her relationship with [Mr A]’s mother and sisters is consistent both with her claims and her explanation for the delay, in that her in-laws’ support for her appeared to be strongly contingent on the perceived state of her relationship with [Mr A].

26. In the circumstances, I consider [the first applicant]’s explanations for the delay in lodging the protection visa application and in raising the domestic violence claims to be reasonable and credible.

27. The Tribunal has had regard to the following country information on Papua New Guinea relevant to the applicants’ claims.

    Tribal violence

28. The Department of Foreign Affairs and Trade’s[3] latest country information report on Papua New Guinea reports the following on payback and tribal violence:

    [3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Papua New Guinea’ (10 February 2017).

    Payback and traditional ‘compensation’

    ‘Payback’ is an act of retaliation that is usually carried out when one group has been harmed by another. In many cases, the perpetrator pays financial or other compensation to the victim or their family. This focus on payback and traditional ‘compensation’ means that female or child victims of sexual assault and domestic violence can be discouraged from seeking the assistance of police or the courts. The practice of payback can lead to impunity from mainstream court processes. Many payback cases are not reported, and witnesses are often reluctant to testify out of fear of retaliation from within the group. Traditional compensation via payback is often preferred because it produces immediate benefits and prevents a cycle of escalating ‘tit-for-tats’.

    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.

    2.38 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.

    2.39 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.

29. The Tribunal has also considered country information it had obtained from other sources.

30. Papua New Guinea (PNG) has many hundreds of ethnic groups and each ethnic group’s members are mutually obligated, including to retaliation against members of rival ethnic groups. A ‘related member of a social group- such as family, clan, tribe, or even if from the same province, etc.’ is called a wantok[4] (‘one talk’[5]). Tribal identity and the tribal-based concept of Wantokism infiltrates all aspects of life, including business, politics and government administration. Wantokism is a system of kinship, welfare and mutual obligation that acts as a social support mechanism ensuring members of the tribe or clan are supported.[6] Wantokism and the custom of retaliation or ‘payback’ on anyone in a rival wantok group are equally prevalent in rural and urban areas.[7] A late 2017 report of assaults and robberies of asylum-seekers on Manus Island by Manus locals quoted a local saying ‘”They have no wontok (tribal familial bonds) here. It’s dangerous for them to walk around”’.[8]

    [4] ‘Briefing Note No.2. Drivers of crime and violence in Papua New Guinea’, Lakhani S & Willman A M, World Bank, Social Cohesion and Violence Prevention Team, Social Development Department, 30 November 2012, pp.11-12 & p.11 footnote 18.

    [5] '[Bertelsmann Stiftung’s Transformation Index.] BTI 2018 Country Report. Papua New Guinea', Bertelsmann Stiftung, [document created 22 January 2018,] p.12.

    [6] ‘Papua New Guinea – Tribes’, Global Security Organisation, undated [c.2013].

    [7] ‘Can Wantok Networks be Counter-publics? Development and Public Space in Urban Papua New Guinea’, Kumagai, K, Annals of Ochanomizu Geographical Society, Vol 55, 30 June 2016, , pp.49-58, at 51.

    [8] ‘Australia/PNG: Refugees Face Unchecked Violence’, Human Rights Watch, 25 October 2017.

1. [The first applicant]’s evidence about the tribal violence she witnessed and experienced is detailed  in paragraphs 18 to 41 of her 2018 statutory declaration, and also in her oral evidence to the Tribunal at paragraphs 49 to 51 and 54 above.  She also provided a document titled “Additional Evidence” dated 9 August 2021, attaching text message exchanges with relatives concerning the murder of a young man known to them, and social media and news reports concerning payback violence and murder among and between members of [the first applicant]’s [Tribe 1] and several other tribes.  All of the evidence, and the country information, is to the effect that police and law enforcement have been powerless to prevent this violence and, in relation to some of the incidents, have in fact been party to it.

2. [The first applicant]’s evidence as to the violence she and her family witnessed first-hand was credible and consistent both with her previous evidence and with the further material she submitted.  It is also consistent with the country information.  [The second applicant] also submitted a statutory declaration 4 November 2021 detailing his recollection of being ambushed after a compensation ceremony, and of the attack on the family home in Port Moresby.  I accept this evidence.

3. The Tribunal is satisfied, on all the evidence, that [the first applicant] and [the second applicant], by reason of [Mr A]’s tribal status, and, in [the first applicant]’s case, no longer enjoying the measure of protection afforded by her marriage to [Mr A], have a well-founded fear of harm in Papua New Guinea and that the State would not, or could not, protect them.  As to whether this amounts to persecution for the purposes of the Act, the comments at paragraphs 91 and 92 apply.

   Domestic violence

4. The Department of Foreign Affairs and Trade’s[9] latest country information report on Papua New Guinea reports the following on domestic violence:

   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.

   3.39 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. 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.

   [9] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Papua New Guinea’ (10 February 2017).

5. The Tribunal has also considered country information it had obtained from other sources.

6. Women in Papua New Guinea face very high levels of societal violence. Sexual harassment of women is widespread and severe.[10] A 2019 Women, Peace, and Security index of women’s ‘wellbeing’ worldwide scored PNG .658 (1 being ideal) and ranked it 117 (of 167 countries).[11] The PNG government in 2016 described gender-based violence as endemic,[12] and stated that 2 in 3 women were said to be affected by it.[13] A 2013 study predicted that 70 per cent of women would experience rape and assault in their lifetime.[14] However a 2014 report stated that data on violence in PNG was so ‘patchy and scarce’ that it was not possible to state whether gender-based violence had increased or decreased.[15] In the largest survey of gender-based violence (GBV) (6176 incidents reported from May 2013 to November 2016 to seven non-governmental organisations (NGOs) in five provinces), 65.6 per cent of perpetrators were the intimate partner of the complainant; 78 per cent of complainants were female. The surveyed NGOs had most frequently provided counselling and mediation, occasionally refuge accommodation and repatriation; they referred to courts usually only cases unresolvable within the family or involving criminal physical and sexual violence. 40.1 per cent of 6063 of the incidents involved physical or sexual violence.[16] The Papua New Guinea Demographic and Health Survey 2016-2018 found that, of 4873 women aged 15 to 49 surveyed, 56 per cent had experienced physical violence since the age of 15, and 28 per cent sexual violence. Physical violence was experienced by more divorced, separated or widowed women (experienced by 70 per cent) and currently-married women (63 per cent) than never-married women (30 per cent). 78 per cent of surveyed ever-married women who experienced physical violence and 77 per cent who experienced sexual violence, reported their current husband as its perpetrator. 66 per cent of never-married women who experienced sexual violence reported current or former boyfriends, and 6 per cent strangers, as its perpetrator.[17] The National Health Information System Data Base recorded in 2018-2020 20,609 victims of intimate partner violence (IPV) and 18,759 ‘sexual violence cases’ were provided with medical care.[18] The PNG GBV Sub-Cluster Group in June 2020 reported a 31 per cent decrease in the number of clients accessing GBV services after COVID-19, as transport limitations, increased caregiving and domestic responsibilities, and lack of COVID-19 information, raised barriers to access.[19] 647 cases of domestic violence were reported in Port Moresby in June 2020, according to the Police Minister.[20]

   [10] 'Country Reports on Human Rights Practices for 2020 - Papua New Guinea', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.15 Section 6.

   [11] 'Women Peace and Security Index 2019/20', Georgetown Institute for Women, Peace and Security, pp.vi, 1, 27, 28, 61 & B & C, 25 October 2019.

   [12] ‘National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Papua New Guinea’, [Advance Version], Government of Papua New Guinea, [United Nations General Assembly.] Human Rights Council, 3 May 2016, p.18.

   [13] ‘Understanding Gender-Based and Sorcery Related Violence in Papua New Guinea. An Analysis Of Data Collected From Oxfam Partners 2013-2016’, Thomas V, Kauli J & Rawstorne P (Queensland University of Technology for Oxfam, undated [document created 19/11/2017]), p. 9.

   [14] ‘Return to abuser: Gaps in servicers and a failure to protect survivors of family and sexual violence in Papua New Guinea’, Médecins Sans Frontières (MSF), March 2016, p.7.

   [15] 'Violence against women in PNG: How men are getting away with murder', Chandler J, Lowy Institute for International Policy, August 2014 [document created 28/8/2014].

   [16] ‘Understanding Gender-Based and Sorcery Related Violence in Papua New Guinea. An Analysis Of Data Collected From Oxfam Partners 2013-2016’, Thomas V, Kauli J & Rawstorne P (Queensland University of Technology for Oxfam, undated [document created 19/11/2017]), pp.10, 8, 12, 14, 16, 15, 25 & 18; ‘Bloodlust hysteria' - sorcery accusations a brutal death sentence in Papua New Guinea’, Helen Davidson, The Guardian, 4 January 2018.

   [17] ‘Papua New Guinea Demographic and Health Survey 2016-18’, National Statistical Office, Papua New Guinea, and The DHS Program, ICF, [26] November 2019, pp.289, 290, 291-292 including Figure 16.1, 301 at Table 16.3, 302 at Table 16.4, & 303 at Table 16.6, on The DCF Program, USAID website; 'PNG health survey shows 56% of women suffer violence at age 15', Pacific Media Centre, 5 July 2020.

   [18] ‘Report To Parliament: Part 1. Inquiry Into Gender-Based Violence In Papua New Guinea’, Special Parliamentary Committee on Gender-Based Violence, National Parliament of Papua New Guinea, 9 August 2021, pp.23-24 including footnote ‘22 This data comes from the Submission from the National Department of Health, 30 June 2021.’ & p.7 including footnote 2.

   [19] ‘Report To Parliament: Part 1. Inquiry Into Gender-Based Violence In Papua New Guinea’, Special Parliamentary Committee on Gender-Based Violence, National Parliament of Papua New Guinea, 9 August 2021, pp.24-25 including footnote ‘29 PNG GBV Sub-Cluster Group (June 2020) The State of Gender-Based Violence during the COVID-19 Crisis and State of Emergency, UNFPA PNG: Port Morseby.’ [sic] &.pp.7-8 including footnote 8.

   [20] ‘Papua New Guinea women demand end to domestic violence after death of 19-year-old mother Jenelyn Kennedy’, Whiting N & Harriman B, ABC News [Australian Broadcasting Corporation News], 4 July 2020; 'World Report 2021. Events of 2020', Human Rights Watch, [13 January] 2021, pp. 526-531 ‘Papua New Guinea’ at 526; ‘Submission to the Universal Periodic Review of Papua New Guinea’, Human Rights Watch, March 2021 [document created 1/04/2021], p.[2] paragraph 5.

7. Only a small proportion of women in Papua New Guinea who experience societal violence seek help from the police. The Papua New Guinea Demographic and Health Survey 2016-2018 found that 35 per cent of surveyed women who had experienced physical or sexual violence had sought help; most commonly seeking the help from their family (72 per cent had), and less commonly from their husband’s family (13 per cent), friends (11 per cent), neighbours (11 per cent), police (10 per cent), social work organisations (3 per cent) and doctors/medical personnel (3 per cent). 15 per cent of surveyed women who had experienced both physical and sexual violence sought help from the police.[21]

   [21] ‘Papua New Guinea Demographic and Health Survey 2016-18’, National Statistical Office, Papua New Guinea, and The DHS Program, ICF, [26] November 2019, pp.297 including Figure 16.4, 313 at Table 16.17, & 314 at Table 16.18, on The DCF Program, USAID website; 'PNG health survey shows 56% of women suffer violence at age 15', Pacific Media Centre, 5 July 2020.

8. Sexual violence has long been criminalised, and the Family Protection Act 2013 criminalised domestic violence and allowed victims to obtain protection orders; however parliament only passed Regulations to implement the Act in May 2017.[22] In October 2017 the National Capital District Family Sexual Violence Action Committee Secretariat revealed that 414 cases handled in 2016-2017 had resulted in 2 convictions; its Case Coordinator said most GBV cases were not prosecuted because police treated domestic violence and GBV as “accepted behaviour”.[23] In October 2017 Prime Minister Peter O'Neill said that despite the law, his government could not stop violence against women without active community support.[24] It was then being reported that police and prosecutors typically mandated mediation, compensation and reconciliation, and had rarely pursued investigations or laid criminal charges against family violence perpetrators.[25]

   [22] ‘World Report 2018’, Human Rights Watch, 18 January 2018, p.417; Freedom in the World 2016 - Papua New Guinea’, Freedom House, 29 August 2016.

   [23] ‘How is the Family Protection Act doing four years on?’, Maribu G, The National, 17 November 2017.

   [24] ‘Test for men’, The National, 26 October 2017; 'Domestic violence: PNG journalist Rosalyn Albaniel Evara's death sparks outrage, investigation', Pacific Beat, ABC [Australian Broadcasting Commission] News, 26 October 2017.

   [25] ‘Human Rights Watch World Report 2019’, Human Rights Watch, 17 January 2019, p.456; ‘World Report 2018’, Human Rights Watch, 18 January 2018, p.417; ‘Understanding Gender-Based and Sorcery Related Violence in Papua New Guinea. An Analysis Of Data Collected From Oxfam Partners 2013-2016’, Thomas V, Kauli J & Rawstorne P (Queensland University of Technology for Oxfam, undated [document created 19/11/2017]), p. 25; Freedom in the World 2016 - Papua New Guinea’, Freedom House, 29 August 2016.

9. In her statutory declaration of 29 September 2021, [the first applicant] gave detailed evidence concerning the domestic violence to which she claims she was subjected.  This was supported by contemporaneous clinical notes and the statutory declarations of [Ms B], [Mr C] and, in less detail, [the second applicant] and [the third applicant].  I accept these claims.  I also accept [the first applicant]’s claims that, by reason of her relationship with [Mr F], she would be identified as an adulterer by [Mr A], other members of her extended family and [Mr A]’s tribal associates, such that she faces additional risk of harm in Papua New Guinea.  As mentioned above, I consider the rapid deterioration of support from her in-laws in Australia, and the hostile treatment to which she has been subjected by them, to corroborate her claims that she has reason to fear harm in Papua New Guinea for this reason.

10. Having had regard to the country information on domestic and societal violence against women in Papua New Guinea, and to the ineffectiveness of state protection, the Tribunal finds that there is a real chance that [Mr A] would again seek to harm [the first applicant], as he has done in the past, and that the state would not, and could not, protect her.

11. The Tribunal is satisfied that there is a real chance that the [the first applicant] would be discriminatorily denied protection against harm for a Convention reason.  The Tribunal has considered MIMA v Khawar (2002) 210 CLR 1, in which the High Court confirmed that the Convention test may be satisfied by the selective and discriminatory withholding of State protection for a Convention reason from serious harm that is not Convention related. In particular (at [30] – [31] per Gleeson CJ):

    Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has duty to provide protection against such harm …

    Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.

12. The Tribunal is satisfied that [the first applicant] is a member of the particular social group constituted by single or separated women in Papua New Guinea. It is satisfied that this group is identifiable by a common characteristic, namely by gender.  The characteristic common to all members of the group is not a shared fear of persecution.  The Tribunal is satisfied that the possession of the that characteristic distinguishes the group from society at large.

13. Despite the country information to the effect that the law of Papua New Guinea criminalises domestic violence, the country information also indicates that the relevant authorities fail to enforce the law.  The Tribunal accepts that there is a widespread and systemic failure to properly protect women and girls from violence.

14. The Tribunal finds that [the first applicant], as a woman in Papua New Guinea, would face a systemic and discriminatory failure by the agents of the state of Papua New Guinea properly to enforce the law.  Looking to the reasonably foreseeable future, it finds that there is a real chance that [the first applicant] would be discriminatorily denied state protection against serious harm at the hand of non-state agents for reason of her membership of the particular social group of women in Papua New Guinea.  It accepts that her (and her daughters’) member if this particular social group would constitute the essential and significant reason for the withholding of state protection.

15. The Tribunal is satisfied that the [the first applicant] and her daughters cannot stake steps to ameliorate the risk, or to relocate within Papua New Guinea, as they do not have family of kinship elsewhere in Papua New Guinea that is not also deeply connected to [Mr A]’s family and kinship relations.

16. Accordingly, the Tribunal finds that [the first applicant] has a well-founded fear of persecution by reason of her being a member of a particular social group of Papua New Guinean women, or single or separated Papua New Guinean women.

    Cumulative claims

17. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicants, the Tribunal finds that there is a real chance that the applicants will suffer persecution as a consequence of tribal violence and, in the case of [the first applicant], as victim of domestic violence and as an imputed adulterous female and, in the case of all of the female applicants, as single women or girls if they return to Papua New Guinea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicants have a well-founded fear of persecution if they return to Papua New Guinea. Accordingly, the Tribunal finds that they 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 applicants being removed from Australia, there is a real risk that they will suffer significant harm?

1. As the Tribunal has determined that the applicants are refugees in accordance with s.36(2)(a) it is not required to consider whether, on the evidence before it, that there will be a real risk that the applicants will suffer serious harm as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea.

   Conclusion: Refugee Criterion

2. 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 applicants will be persecuted for reason of their being members of particular social groups, namely, those of membership of the [Tribe 1] with responsibility or imputed responsibility for payback compensation, and, in the case of the female applicants, Papua New Guinean women and girls.  Their fear of persecution is well-founded as required by s.5J of the Act and therefore they are refugees within the meaning of s.5H.

100. For the reasons given above the Tribunal is satisfied that the first, second, fourth, fifth and sixth named applicant are persons in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

101. The Tribunal is not satisfied that the third and seventh named applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that third and seventh named applicant are each the son of the first named applicant and are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

decision

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

(i) that the first, second, fourth, fifth and sixth named applicant satisfy s 36(2)(a) of the Migration Act; and

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

James Lambie
Senior Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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