1814085 (Refugee)

[2021] AATA 1641

1814085 (Refugee) [2021] AATA 1641 (26 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814085

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Sean Baker

DATE:26 April 2021

PLACE OF DECISION:  Melbourne

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

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

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

Statement made on 26 April 2021 at 1:14pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – single women without protection of husband/father – gender-based violence – systemic and discriminatory failure by state agents – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91WB, 425, 499
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Papua New Guinea, applied for the visas on 4 November 2013 and the delegate refused to grant the visas on 27 April 2018.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.425(2)(a) of the Act.

4. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. 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.

10. The issue in this case is whether any of the applicants have a well-founded fear of persecution on return to Papua New Guinea or, if not, whether there is a real risk they will suffer significant harm if removed from Australia to Papua New Guinea. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Claims

11. In her protection application the primary applicant spoke primarily about her fears of return to West Papua as the partner of a high-profile West Papuan independence activist.

12. In her later statutory declarations, she explains her fears of return to PNG stating in her 9 February 2015 declaration that she cannot return without her husband, that there would be nowhere for them to go and stay and it is not safe for them. In her 19 February 2015 declaration she states that because she witnessed domestic violence between a couple in [Town 1], she fears harm from the husband of that couple, as well as the more general increase in violence and assaults against women and girls. In her statutory declaration of 30 April 2015, she details her fears of return due to her political activities, those of her husband, as well as her fears of returning as a woman alone with children. She would be forced to return to PNG without protection for her or her children. Her father is too old to provide protection for her. He is retired and cannot financially support her and her children. She has not worked in PNG since 2010. She has only completed year 10. Married women who have their children with them and do not have their husbands with them are at risk. as a married woman she has no place of her own and no land to go to. Her children will be harmed because of her husband’s political activities and her political activities, because they are half Papuan,

13. In her statutory declaration of 18 May 2017, the applicant detailed her political activities in Australia and addressed the cancellation of her husband’s protection visa.

14. The applicant provided to the Department identity documents including PNG birth certificates and passports, and evidence of political activities undertaken in Australia and PNG.

15. To the Tribunal the applicants provided statutory declarations. In her statutory declaration [the first-named applicant] stated that she was scared to return to PNG because she believed she would be harmed as a single woman without her husband’s protection, at risk from Indonesian intelligence and PNG authorities working with Indonesian intelligence and because she has serious asthma. She provided more detail about her life in PNG. Her father was violent, and she had to have surgery because of his attacks, her cousin was killed, and when her husband left for West Papua she was not safe. She fears for her children because their father is West Papuan, she does not know if they can get PNG passports. she fears they will be returned to West Papua. She fears they will speak out about West Papuan independence. She fears that she and her daughter as single women will be harmed. She has nowhere to live and would struggle to work and afford housing. She fears her kids will get into drugs or smoking without their father. She also discussed her health including her serious asthma. They will have no effective protection and could not relocate.

16. [The second-named applicant] provided a statutory declaration in which she stated she feared she would be harmed on return for the political activities of her family and as a young single woman without her father to protect her. As a small child in [Town 1] she witnessed violence towards women and girls. She has been politically active in Australia. attached were social media posts by [the second-named applicant] and photographs of the family protesting in Australia.

17. [The third-named applicant] stated in his statutory declaration that he was afraid he would be arrested and harmed by Indonesian authorities and PNG authorities because of his and his family’s political activism. He stated that if he were forced to return to West Papua, he was scared he would be intimidated, tortured or killed by Indonesian authorities because he is West Papuan, because of his political activism and because of who his father and grand-uncle are. He has been politically active in Australia and he also attached social media posts and photographs of the family protesting in Australia.

18. The primary applicant’s husband and applicant two and three’s father also provided a statutory declaration. He explained his fears if his family were to return. He discussed the death of his nephew. He also provided examples where West Papuans in PNG had been harassed and assaulted by PNG authorities, he claimed at the direction or behest of Indonesian authorities.

19. A submission dated 13 April 2021 was provided with detailed legal arguments and country information.

    Country of reference

20. The primary applicant is a citizen of PNG.

21. Applicants two and three are also citizens of PNG by virtue of s.66 of the Constitution of PNG, as their mother is a citizen of PNG.[1]

    [1] Constitution of the Independent State of Papua New Guinea [],  16 September 1975, available at: 29 March 2021]

    Consideration

    S.91WB

22. In an earlier case (case number 1710245), I set aside the cancellation of [Mr A], the primary applicant’s husband/applicant two and three’s father, with the result that he once again holds a protection visa on the basis of being owed protection as a refugee under s.36(2)(a). In the ordinary course, I would consider whether the applicants in this case satisfy the requirements in s.36(2)(b).

23. I accept that applicant one is the spouse of [Mr A]. I accept that applicants two and three are his children, and I find that they are dependent upon [Mr A] and their mother, applicant one. They all therefore satisfy the definition of members of the same family unit as [Mr A].

24. However, s.91WB operates to preclude the grant of protection visas to these applicants on the basis of their membership of the same family unit as [Mr A].

25. It lies therefore to consider their claims to satisfy ss.36(2)(a) or (aa).

    Single women without a husband / father to protect them

26. In the case of the applicant’s husband (case number 1710245), I found that [Mr A] is a national of Indonesia, and that he is not a citizen, nor does he have a right to enter and reside in PNG. Further, I accept that [Mr A] has a real fear of return to PNG because he believes that he may be abducted or imprisoned either by agents of the Indonesian authorities, or PNG elements acting on the wishes of the Indonesian authorities.

27. For these reasons I accept the evidence of [the first-named applicant] and of her husband [Mr A], that he would not return if the applicants were returned to PNG.

28. I accept therefore the [the first-named applicant] and [the second-named applicant] would return as single women, without the support of their husband/father.

29. Having regard to the country information,[2] I accept the submissions that this group is identifiable by a common characteristic, being their gender and lack of male protection, that this characteristic distinguishes the group from society at large and that the characteristic common to the group is not the shared fear of persecution. I accept that this constitutes a particular social group and, on the basis of my findings above, that both [the first-named applicant] and [the second-named applicant] would constitute part of this group of they were to return.

    [2] DFAT Country Information Report Papua New Guinea, 10 February 2017, 3.32 – 3.39; IWDA Papua New Guinea & Bougainville, Papua New Guinea & Bougainville | IWDA; Griffith Asia Institute, “Gender based violence in Papua New Guinea”, 24 August 2020,

30. The most recent DFAT report confirms that levels of violence against women are extremely high across PNG,[3] with gender based violence labelled an epidemic.[4] Whilst most attention, rightly, has focused on the appallingly high rates of family and domestic violence, this epidemic of violence also includes high rates of gender based violence outside the family violence space, in public spaces or other contexts.[5]

    [3] DFAT Country Information Report Papua New Guinea, 10 February 2017, 3.34.

    [4] ANU Crawford School of Public Policy, Combatting the family and sexual violence epidemic in Papua New Guinea, submission to the inquiry of the Human Rights Subcommittee of the Foreign Affairs, Defence and Trade Joint Standing Committee into the human rights issues confronting women and girls in the Indian Ocean-Asia Pacific region, May 2014.

    [5] IWDA and others, Submission to The United Nations Special Rapporteur On Violence Against Women - COVID-19 Domestic Violence Against Women In Papua New Guinea, 30 June 2020, COVID-19-and-Gender-Based-Violence-in-PNG-FINAL-Submission_v3.pdf (iwda.org.au); Human Rights Watch, World Report 2021, Papua New Guinea, World Report 2021: Papua New Guinea | Human Rights Watch (hrw.org)

31. This violence may stem from the lack of equality and gender discrimination across all levels of society, ranking 161 out of 189 countries measured by the UNDP gender inequality index in 2020.[6] Country information reports that the shockingly high levels of gendered violence are accompanied by lack of prosecution of offenders, lack of protection for women and girls and a lack of services. What services are available are massively underfunded and oversubscribed.[7]

    [6] UNDP Gender Inequality index 2020 (2019 data), Gender Inequality Index (GII) | Human Development Reports (undp.org)

    [7] DFAT Country Information Report Papua New Guinea, 10 February 2017, 3.34 – 3.37.

32. The above leads DFAT to assess that

    … women across PNG have a high risk of societal discrimination due to long-standing traditional values and gender roles … [and] … 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.’[8]

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

33. This assessment is widely confirmed.[9]

    [9] United States Department of State, ‘Papua New Guinea 2019 Human Rights Report’, 11 March 2020 p.15 Rachel Jewkes, et al, ‘Prevalence of and factors associated with non-partner rape perpetration: findings from the UN multi-country cross-sectional study on men and violence in Asia and the Pacific’, The Lancet (Article, 10 September 2013) OSAC Papua New Guinea 2020 Crime & Safety Report, Papua New Guinea 2020 Crime & Safety Report (osac.gov)

34. The country information indicates that the authorities are reluctant to help, and indeed, police are often the perpetrators of sexual violence against women. The country information indicates that male family members and Wantok are central to any protection women and children hope to have in PNG.[10]

    [10] Nanau, G., ‘The Wantok System as a Socio-Economic and Political Network in Melanesia’ June 2011, OMNES The Journal of Multicultural Society 2(1):31-55

35. I accept that [the first-named applicant] suffered violence at the hands of her father growing up. I accept that when the family lived in [Town 1] and [Mr A] was in West Papua, that men attempted to attack [the first-named applicant] and her children on numerous occasions. I accept that this represents a sadly common phenomenon in PNG where a woman and children unprotected by males and Wantok are targeted for harm.

36. [The first-named applicant] has given evidence that she has a poor relationship with her family in [Province 1]. They have no family or other Wantok elsewhere in PNG. I accept that the applicants would return to [Province 1] as the place of most familiarity to [the first-named applicant], but I accept that her access to family support and other Wantok networks there, given her relationship with her family and her significant period outside PNG, would be extremely limited.

37. As such, I consider that [the first-named applicant] and [the second-named applicant] would be targeted for harm as single women without the protection of a husband/ father or strong Wantok, and that the country information indicates that the chance of this occurring to the applicants if they return to [Province 1] is not remote or far-fetched.

38. I find on the basis of the information before me that there is a real chance, that is one that is not remote or far-fetched, that [the first-named applicant] and [the second-named applicant] would be subjected to gender based violence including sexual assault or other violence amounting to serious harm if they were to return to [Province 1] now or in the reasonably foreseeable future.

39. Such harm may be inflicted upon them by agents of the authorities, being the police, or by non-state actors. In the case of infliction of harm by non-state actors, I find that despite some attempts to pass laws and resource specific women’s violence units within the police force,  country information set out above, including about the dire lack of services and inadequate police protection for victims of family violence – in some cases police are the perpetrators themselves - indicates that violence against women is widespread, state protection is ineffective, and perpetrators often act with impunity.  Therefore, I accept that there is a widespread and systemic failure to properly protect women and girls in PNG from violence, and this is the case notwithstanding laws criminalising family violence.  I find that [the first-named applicant] and [the second-named applicant] as single women without protection in PNG would face a systemic and discriminatory failure by agents of the PNG state to properly enforce the law.

40. For these reasons I find that there is a real chance that [the first-named applicant] and [the second-named applicant] would be discriminatorily denied state protection against serious harm at the hands of agents of the authorities or men in the community for reasons of their gender and membership of a particular social group.  I find that this reason would be the essential and significant reason for withholding state protection and this would be systematic and discriminatory because it is targeted at women specifically.   

41. I have considered if the applicants could avoid the harm feared by living somewhere else in Papua New Guinea. However, I find on [the first-named applicant]’s evidence that they do not have family or other wantok support in other areas of Papua New Guinea. The country information is clear that this would preclude them from moving to a remote or rural part of Papua New Guinea. If they were to relocate to Port Moresby or another city, they would have to fund accommodation and food with no family support or wantok, and would be exposed to the chance of gender based violence, which on some reports is greater in cities such as Port Moresby. [The first-named applicant] and her children have not lived in PNG for many years and such lack of familiarity with the social environment can be highly dangerous in Port Moresby or another city where a person lacks wantok. I find that this would be unreasonable in all the circumstances of the applicants. For these reasons therefore relocation will not lead to them avoiding the harm feared, or in the case of a city is not reasonable or practicable in all of the circumstances. I find therefore that the applicants are not able to avoid the harm feared by relocating to another part of PNG.

1. Having regard to the above, I find in all of the circumstances of [the first-named applicant] and [the second-named applicant] that they face a real chance of serious harm from the police or men in the community on return to PNG for the essential and significant reason of her membership of the particular social group of single women without a husband / father.  I find that they have a well-founded fear of being persecuted on return to PNG now or in the reasonably foreseeable future. 

   Member of the family unit

2. Having regard to the evidence of [the first-named applicant] I accept that [the third-named applicant] and [the second-named applicant] is wholly or substantially reliant on his parents, [Mr A and the first-named applicant], for his financial, psychological and physical support, and that he therefore satisfies the definition of ‘dependent child’. As a dependent of [the first-named applicant] as the family head, [the third-named applicant] therefore is a member of the same family unit for the purposes of s 36(2)(b) of the Act.

   Conclusions

3. For the reasons given above the Tribunal is satisfied that the first and second named applicants are persons in respect of whom Australia has protection obligations. Therefore, the first and second named applicants satisfy the criterion set out in s.36(2)(a).

4. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the third named applicant is the son of [the first-named applicant] and is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the other applicant 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

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

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

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

   Sean Baker
   Member