1907107 (Refugee)

[2020] AATA 2388

1907107 (Refugee) [2020] AATA 2388 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907107

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Michael Hawkins

DATE:5 June 2020

PLACE OF DECISION:  Brisbane

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

(i)that the first named applicant satisfies 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 05 June 2020 at 11:35am

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea _­­– Federal Circuit Court remittal – victim of domestic violence – particular social group – single women in Papua New Guinea – separated Papua New Guinean women – credible evidence – relocation not reasonable – systemic failure to protect women from violence – discriminatory denial of state protection – effective state protection not available – member of the same family unit – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 499

Migration Regulations 1994 (Cth), r 1.12; Schedule 2

CASES

Applicant S v MIMA (2004) 206 ALR 242
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559 at 596
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
Subramaniam v MIMA (1998) VG310
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 Immigration and Border Protection on 7 July 2017 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 22 April 2016. The delegate refused to grant the visas on the basis that the applicants were not persons to whom Australia had protection obligations.

3. The Tribunal affirmed the delegate’s decision on 19 March 2018. The applicant appealed to the Federal Circuit Court of Australia, and that decision was set aside by the Federal Circuit Court by a consent order [in] 9 April 2019. The matter is now before the Tribunal pursuant to an order of the Court.

   CRITERIA FOR A PROTECTION VISA

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

5. 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.

6. 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).

7. 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.

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 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

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.

   Member of the same family unit

10. Subsections 36(2)(b) and (c) of the Act provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the children of the family head.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) and that the other applicants satisfy s.36(2)(b)(i), on the basis of membership of the same family unit as the first named applicant.

    Background:

12. The first-named applicant (“the applicant”) was born on [date] in Enga Province. She has lived the major part of her life in Port Moresby, Papua New Guinea (PNG).

13. The applicant is separated from a de facto husband.

14. The applicant was first married to [Mr A] in Port Moresby and they had two sons together. The applicant and [Mr A] divorced and the applicant states she has no contact with him. The applicant’s second son [lives] with the applicant’s younger sister and her husband in PNG. He has done so since birth as the applicant claims she could not afford to care for him after her husband abandoned them. The applicant’s younger sister and her husband have no children of their own.

15. After the birth of her second child, the applicant began a de facto relationship with [Mr B] and they had one daughter together, [born] on [date]. She and Mr [B] were in a de facto relationship for three years until she learned that he had several wives.

16. She claims that she never lived with Mr [B] and he never provided accommodation for her and her children. She claims he began to be violent towards her when she sued him for support and maintenance.

17. The applicant claims that she had no money as she had a falling out with her mother over her late father’s estate and was desperate for money. That is why she made a claim against Mr [B]. As a consequence of his domestic violence she departed for Australia in March 2016.

18. The applicant applied for a [temporary] visa on 16 July 2015.

19. The applicant arrived in Australia [in] March 2016, pursuant to a [temporary] visa granted on 19 November 2015. 

20. The applicant applied for a protection visa on 22 April 2016.

    Claims:

    Summarised from Statutory Declaration and as summarised in the Delegate’s decision.

21. The applicant claims she left PNG because she feared for her life.

22. The applicant claims her de-facto partner, Mr [B], is the father of her youngest [daughter] (the third-named applicant).

23. The applicant claims she tried to obtain restraining orders against Mr [B] but he continued to go to her house and hurt and threaten her and was verbally abusive to her in public. She claims she was physically, emotionally and mentally abused by [Mr B].

24. The applicant claims the court, police and judicial system are corrupt and she will not receive any justice in relation to her claims against Mr [B] for child maintenance.

25. The applicant claims Mr [B] got involved with witchcraft to kill the applicant and her children and that her children became sick and lost weight.

26. The applicant claims she had to move around constantly in order to avoid Mr [B].

27. The applicant claims she was falsely accused of assault against Mr [B] and spent a night in prison.

28. The applicant claims in January 2016 Mr [B] stabbed her on the arm but did not report it because when she had reported incidents in the past nothing ever happened.

29. The applicant claims she is afraid that Mr [B] may take her daughter away from her if she returns to PNG.

30. The applicant claims she cannot relocate as she would be unable to support herself outside her own area and has no ties or kinship links.

31. The applicant also claims that she may be harmed by other men in the community if she is returned to PNG.

    Evidence:

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

    • The applicants protection visa application forms signed on 19 April 2016 and lodged on 22 April 2016 (“visa application”).
    • The applicants identity documents being a copy of each applicant’s passport provided to the Department;
    • A statutory declaration of the first named applicant dated 2 February 2017;
    • Letter of [Ms C], Family Support Worker, [Community Organisation 1] dated 2 February 2017;
    • An undated claim submission from the applicant’s Representative submitted to the Department;
    • Documents of various dates for proceedings involving the first named applicant and [Mr B] in the Children’s Court of Port Moresby and [named] Village Court;
    • General Summary of police report of Violence by [Mr B] against the Applicant, Royal Papua New Guinea Constabulary, dated [June] 2015;
    • Statutory declaration of the first named applicant dated 13 January 2017;
    • A record of interview with the delegate dated 19 January 2017;
    • The protection visa decision record (‘delegate’s decision record’) of 7 July 2017;
    • The application for review form lodged on 17 July 2017 which did include a copy of the delegate’s decision record;
    • Statutory declaration of the first named applicant dated 1 August 2017;
    • Letter of [Ms C], Case Manager, [Community Organisation 1] dated 15 November 2017;
    • School reports for the second named applicant provided to the Tribunal on 2 March 2018;
    • Submissions provided by the first named applicant to the Tribunal on 16 February 2018 including:
    •  Statutory declaration of the first named applicant dated 15 February 2018;
    • Statutory declaration of [Mr D] dated 1 February 2018;
    • The Tribunal decision record (‘First Tribunal decision’) made 19 March 2018;
    • Order of [a Judge] of the Federal Circuit Court of Australia (‘FCC order’) dated [in] April 2019; and
    • Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Papua New Guinea, published on 10 February 2017.

    Country of reference/receiving country

33. The applicant claims to be a PNG national. Based on the copy of her passport provided to the Department of Immigration and Border Protection (the Department) by the applicant and by the applicant to the First Tribunal, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

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

35. The second and third named applicants claim to be PNG nationals. Based on the copies of their passports provided to the Department of Immigration and Border Protection (the Department) by the applicant and by the applicant to the First Tribunal, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG 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.

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

    Hearing:

37. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns in relation to holding a telephone hearing during the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.

38. The Tribunal had previously agreed to an extension of the date for the hearing to enable the applicant to give birth to her fourth child. The applicant shortly afterwards made contact with the Tribunal to reschedule her hearing. Again at that time she stated she was happy to have a hearing by telephone.

39. The applicant appeared before the Tribunal on 1 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted without the assistance of any interpreter and proceeded in the English language. The applicant was not accompanied by any Representative.

40. 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 she must either be recognised as a refugee or be a person entitled to Complementary Protection.

41. The Tribunal explained that under Australian law, to be a refugee she 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 she will face serious harm if she returned to Papua New Guinea. The harm must be directed at her for one of the following reasons: race, religion, nationality, membership of a particular social group or political opinion.

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

43. The Tribunal discussed her claims as summarised in the Delegate’s Decision. It confirmed that her claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that she did not need to change them.

44. The Tribunal noted the findings of fact of the delegate and of the First Tribunal. The Tribunal also recorded the fact of the applicant’s appeal to the FCCA and the terms of the consent order remitting the matter back to the Tribunal.

45. The delegate formed a view that the applicant did not face domestic violence incidents from [Mr B] as she was unable to give any specificity about the alleged incidents. The delegate also noted that despite being granted [visas] in November 2015, she did not depart PNG until [March] 2016, a delay of four months.

46. The First Tribunal found that the applicant’s accounts of her assaults by her ex-partner appeared implausible to the Tribunal. The applicant claimed that she had to seek him out every fortnight for money for their daughter, which she claims that he did not pay, and was physically assaulted by him every time. Apart from a market incident, she did not recount to the Tribunal any other incident of violence towards her from her ex-partner. The First Tribunal did not accept that someone who claimed to have been “terrified” of her ex-partner would nevertheless seek him out every fortnight, knowing that she could expect to be assaulted by him, to ask for money that he never gave her. The First Tribunal found the account provided by the applicant of her reasons for departing PNG and coming to Australia to seek protection to be fabricated in its entirety.

    Assessment of Claims and evidence, and findings:

47. 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).

48. 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.

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

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

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

2. The Tribunal had concerns in relation to the delay between obtaining the [visa] to travel to Australia and actually leaving PNG. The Tribunal explained that the delay was akin to delaying making a protection visa after arriving in Australia, though it did note that in this case the applicant had made an almost immediate claim for protection. The Tribunal had noted that the applicant applied for a [visa] on 16 July 2015, it was granted on 19 November 2015 but that she had only arrived in Australia [in] March 2016, a delay of over four months.

3. 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….”

4. 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.

5. The Tribunal compared that situation to the applicant’s delay in leaving PNG, after she had obtained a visa to do so.

6. The Tribunal discussed these concerns with the applicant at length. She explained simply that she had no money to purchase tickets. It was only when she discussed her plight with her cousin [Mr D], that he arranged tickets for her so that she could leave the country. She then stated that she arrived in Australia with only a small amount of money [Mr D] had given her and that she had lived in women’s shelters ever since.

7. The Tribunal, and in the context of reviewing a letter from the [Community Organisation 1] Domestic Violence service dated 15 November 2017 wherein it was advised that the applicant and her two children entered their refuge [in] May 2016 after escaping domestic violence, that the applicant attended weekly case management meetings over a period of 21 months, and it is the view of the service that the applicant and her children suffered and were exposed to severe physical and emotional abuse prior to entering Australia, accepted her explanation as reasonable.

8. 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 >

   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.

9. The Tribunal considered the applicant’s claims as to having been a victim of domestic violence at the hands of her former partner Mr [B].

10. The Tribunal considered the findings of the delegate that the applicant did not face domestic violence incidents from Mr [B] as she was unable to give any specificity about the alleged incidents. It also considered the findings of the First Tribunal that the account provided by the applicant of her reasons for departing PNG and coming to Australia to seek protection to be fabricated in its entirety.

11. The Tribunal noted however that the applicant was very much better prepared for this hearing. The applicant had the benefit of understanding the adverse findings made against her and was able to address them in detail.

12. The Tribunal considered the statement of Mr [D] in Papua New Guinea claiming to be the applicant’s brother in-law and stating that he had been living with the applicant’s family since 2008 and is married to her younger sister. Mr [D] states that he and his wife have adopted the applicant’s second born [son] because the applicant couldn’t afford to take care of him. Mr [D] states that it is not safe for the applicant and her children to return.

13. The Tribunal, like the First Tribunal, has considered the letter from [Community Organisation 1] Domestic Violence Services referenced earlier, which stated that the applicant and her two children had experienced and had been exposed to severe physical and emotional abuse prior to entering Australia. The Tribunal noted that Ms [C] of the service relied entirely on the applicant’s account of her life in, and departure from, PNG and had no reason to question it. The applicant and her children have been living under the care of the service and provided with accommodation and a payment of over $1,000 per fortnight from the Department of Home Affairs since their arrival. The Tribunal places some weight on the fact that two separate entities found the applicant’s account convincing such that they have provided her with such extensive services and support.

14. The Tribunal also considered a statement of [a case officer] at [a named] Police Station in PNG who on [date] June 2015 stated that the applicant had “continuously visited [the] Police Station reporting on incidents on her and her child by her defector (sic) husband [Mr B]” and that she had been “advised to seek help from the Family Court in [location] or down town”.

15. The Tribunal also noted the contents of an Affidavit that was filed by Mr [B] in response to the child maintenance Court matter in PNG.  In the Affidavit, Mr [B] denied that he was the father of the applicant’s daughter, though he did admit to having supported the applicant financially with around 300 Kina per fortnight, along with extra cash. He claims he did that until the applicant told him that the child was not his. The Tribunal noted the applicant’s response that she had never said that.

16. The Tribunal discussed with the applicant the status of her relationship with her [son].

17. She confirmed that she communicates regularly with her younger sister. She confirmed that her [son] considers her younger sister to be his mother. The advised that no formal adoption papers have ever been prepared or signed.

18. The Tribunal discussed with the applicant her relationships with the fathers of her children. The applicant confirmed that she had no contact with Mr [A], the father of her two sons.

19. The applicant confirmed that she has had no contact since being in Australia with Mr [B], the father of her daughter.

20. The applicant confirmed that she had recently given birth to a baby boy but that she has no contact with the father of that son.  She stated that the father of her baby is [a foreign] national with permanent residency in Australia, she does not know his surname or his location and confirmed that he left as soon as he learned that the applicant was pregnant.

21. The Tribunal enquired of the applicant about her family. She stated that her father was deceased, having passed away in June of 2010. She said her mother still resides in PNG with [her siblings], some of their partners and their children. She stated that she had a falling out with her mother shortly before leaving PNG over the Estate of her father and the fact that her mother took everything and gave nothing to the children. The applicant admits though that since being in Australia, that relationship has softened and she speaks to her mother by telephone once in a while, though not on a regular basis.

22. The applicant confirmed that the only relative she has regular contact with is her younger sister who looks after her second son.

23. The Tribunal returned to her relationship with Mr [B] and asked the applicant specifically about her relationship with Mr [B]. She advised that Mr [B] does not care about the applicant or the children and he does not provide any ongoing support or maintenance to her.

24. The Tribunal enquired of the applicant as to how she had managed to obtain a passport and visas for the children without the consent of their respective fathers. She provided a detailed explanation that she gave the children her father’s surname. She said that they had all lived in her father’s house and that when he was alive, he took care of her.  She claims that she simply made application for the passports and visas, putting the children’s father’s name as her own father’s name and advised that at some point in the process she advised that her father was deceased and was required to provide a Death Certificate which she duly did.

25. The Tribunal noted an issue that the Delegate raised with the applicant that her father had passed away in 2010 but that her daughter was not born until [year] and enquired of the applicant how the Immigration Department or Passport Office could not have noted that.  She stated that she could not explain that and that all along all she did was follow the process that the Department told her and answered the questions that she was asked.

26. The Tribunal returned again to the status of her relationship with Mr [B]. She advised that whilst she connected with Mr [B] shortly after the birth of her second son, the relationship lasted only about three years. She found out that he had several wives. She advised that she never formally married Mr [B] and that they had a de facto relationship but that they did not live together and she continued to live in her family home.

27. The Tribunal enquired of the applicant as to when Mr [B] became violent and abusive.  She advised that the relationship was always volatile but that he really only became violent after she had started reporting him to the police for failing to give her money and then took him to Court for child maintenance.  She confirmed that there had been no violent incidents before then.

28. However, after the Court proceedings commenced, he became very abusive to her, both privately and in public.  He would often stop her on the road and abuse her.  He would often hit her when she went to his house or office to get money.  He would threaten to call the police on her.  He would also often bring people with him to her mother’s home to intimidate her.  She also states that in late 2015, shortly before Christmas, she encountered him in the marketplace where he was with a group of people and again a scuffle ensued and he cut her hand.

29. The Tribunal enquired of the applicant as to the extent of the injury.  She claimed that she didn’t go to a hospital and treated the wound at home.  Asked whether she went to the police, she stated that she had been to the police several times in the past but they kept referring her to the Family Court.  She explained that the police situation in PNG is complicated and they tend not to take much notice of wives and partners making complaints about their husbands or partners.  She confirmed again that she did not go to the police after her hand was stabbed.

30. The Tribunal asked the applicant who she was living with immediately before her departure from PNG.  She stated that she had been living with her mother and all of her siblings until shortly before she left.  She restated that she had a falling out with her mother over money and despite the fact her mother got everything from her father on his death, she had to continually beg for money.  She states that after she left, she moved in with friends, moving between houses for a couple of months before she left for Australia in March of 2016.  She stated that her friends protected her and when she was with them she felt safe.  However, whilst they provided shelter, she still needed money to survive and persisted in seeking money from Mr [B].

31. The Tribunal asked the applicant whether she had withdrawn her claim for maintenance against Mr [B].  She replied that she had not but was not aware of the status of the claim.

32. She then stated that shortly before Christmas in 2015, Mr [B], using his contacts in the Police Force, managed to have her sent to prison.  The Tribunal asked on what charge.  She said she wasn’t sure but thought it may have been assault.  She said that the police took her forcibly from her home and took her to the police station.

33. The Tribunal asked who looked after her children.  She stated that her friends, whom she was living with, cared for the children.  She said her mother bailed her out of jail the next morning.

34. The Tribunal asked the applicant whether Mr [B] ever threatened to take her daughter off her.  She stated that he threatened this all the time, knowing that scared her the most.  The Tribunal asked whether Mr [B] had ever actually taken her daughter off her.  She replied that he had not.  The Tribunal noted that Mr [B] evidently had the opportunity to take her daughter off her when he had arranged for her to be in prison.  It further noted that Mr [B], in Court documents, denied that the daughter was in fact his. The Tribunal expressed its concerns about this to the applicant but she maintained that he continually threatened to take the daughter away.

35. The Tribunal then asked the applicant why it would be that Mr [B] would still be interested in her, noting that she had been in Australia for over four years and denied that the daughter was his. She replied that he was still interested in her because of his daughter.  She stated that Mr [B] still goes to her mother’s home to see if the applicant has returned from Australia.  She stated that her mother rings her to tell her of his visits.  She stated that she tells her mother to ignore him and tell him nothing.  She stated that his last visit was at the beginning of 2020.  She also stated that if she was to return to PNG, she would need to make a claim for child maintenance of Mr [B] in order to survive.  She states that she could not live with her mother again as there are too many other people there.

36. The Tribunal is not satisfied that Mr [B] has any intention to remove the daughter from the applicant, but may continue to threaten to do so as leverage to make the applicant’s claims for maintenance cease.

37. The Tribunal enquired of the applicant about her fear of being assaulted or raped.  She confirmed that she has not been so assaulted or raped by anyone in PNG to date but maintains that the reason for that is the security that her friends provide her.

38. The Tribunal asked the applicant about her fears for her daughter, noting that her daughter is only [age] years old.  She replied that she fears for her daughter because horrible things like this happen in PNG and that if they are forced to return to PNG, they will have nowhere to live and no money and will be very vulnerable.

39. The applicant also stated that her situation is even worse now with the additional baby.  She stated that it will be very difficult for her to protect her children and stated again that she could not return to her family home with her three children given that there are already [number] siblings living there, some with partners and their own children.

40. The Tribunal put to the applicant a concern that the First Tribunal had with her evidence in that she would regularly go to Mr [B]’s office which would result in her being assaulted.  The applicant replied that she only ever went to Mr [B]’s office and sometimes his home in order to collect money.  She stated that she went regularly every fortnight.  She said that when she went to his office or home, there would invariably be shouting and a fight and she would be hit but he would always provide some money.  He just did so begrudgingly.

41. The Tribunal noted the evidence that she had provided to the First Tribunal which was recorded as her attending on Mr [B] every fortnight for money but that she never got any money from him.  The Tribunal noted that it appeared to be on that basis that the First Tribunal queried the genuineness of that claim.  The applicant responded that she did get money out of Mr [B] and that was why she went every fortnight because that was when he was supposed to give her money, the only problem being that she had to always chase it.  She stated that she was so desperate for money that she had to go and get it from him and suffered the abuse and violence as the price to get that money out of him. 

42. Finally, the Tribunal asked the applicant about a concern the Delegate had in relation to the applicant’s evidence at the Department interview.  The Delegate had noted that on the applicant’s Entry Card into Australia, the applicant had provided for Mr [B]’s number as an emergency contact.  The Delegate had considered that strange given that the applicant’s evidence was that she was seeking to escape from the Mr [B].  The applicant replied that she had not completed the card properly when she arrived in Australia and that an Immigration Officer helped her to complete the Entry Card.  When asked about an emergency number, the applicant explained that she knew no one in Australia whose number she could provide.  The applicant claimed that it was the Immigration Officer who suggested that she put the contact details of the father of the children in case something happened to her and that is why Mr [B]’s number was there as the emergency contact.

43. The Tribunal revisited the matter of the time delay between departure from PNG and the time of potential return.

44. The Tribunal noted again that the applicant arrived in Australia in 2016, and that it was now 2020 – more than four years had passed since she had left PNG and Mr [B]. Mr [B] had many other wives. He denied the daughter was even his. The Tribunal inquired again of the applicant why Mr [B] would still be even interested in her, let alone wanting to harm her.

45. The applicant was quite animated and emotional in her response. The Tribunal paused on a number of occasions to allow the applicant to gather herself. She explained that she was the mother of his child and that she would still be considered to be his wife. They have a daughter together and she is concerned that he might attempt to take the daughter from her as he has threatened in the past. She replied that she will still require financial support from him and will continue to seek it from him.

46. The Tribunal considered Country Information from the DFAT Report and other external reports.

47. The Tribunal notes that the country information available provides general background support for the applicant's claim to fear violence at the hands of her ex-de facto partner. Among this information is a comprehensive and recent report prepared by Medecins Sans Frontières[3] which states, in part:

    [3] “Return to Abuser: Gaps and a failure to protect survivors of family and sexual violence in Papua New Guinea”, Medecins Sans Frontieres, March 2016.

    In Papua New Guinea, women and children endure shockingly high levels of family violence and sexual violence with rates of abuse estimated to be some of the highest in the world outside a conflict zone.

    This is backed up by the experience of Médecins Sans Frontières/Doctors Without Borders (MSF), which has treated 27,993 survivors of family and sexual violence in the country since 2007.

    In 2014 and 2015, some 3,056 people sought care for the first time in MSF-run family Support Centres in the capital, Port Moresby, and in Tari, in the Highlands region. Their accounts provide important insights into the patterns of intimate partner violence, family violence and sexual violence in these areas. Their experiences suggest that large numbers of people are suffering grave physical and psychological wounds in the very place they should feel the safest – within their homes and families.

    The overwhelming majority – 94 percent – of these patients were female.

    Most had been injured by their partners, family or community members, and in more than a quarter of all incidents involving intimate partners, the women had been threatened with death. Nearly all – 97 percent – of those patients had injuries that required treatment. Two in three had been attacked with weapons, including sticks, knives, machetes and blunt instruments.

    Children are also exposed to serious violence from a very young age, MSF's data shows, most often at the hands of family members or others they know in their community. More than half of all MSF consultations for survivors of sexual violence were with children, around one in six of which were with children younger than five years. Children also made up one in three of all family violence consultations in Port Moresby, and one in eight in Tari.

    Forty-nine percent of patients who sought care following sexual violence said the abuse – in most cases, rape – occurred at home. The younger the survivor, the more likely it was that they were abused at home. For most patients, the perpetrator of sexual violence was someone they knew. Again, the younger the child, the more likely this was, with a known perpetrator involved in the sexual violence against almost nine in ten children younger than five years.

    Many of the patients who returned home after their consultation were in danger of experiencing further abuse. One in ten adult women reported that the latest incident of sexual violence was part of a repeated or ongoing pattern. For children, this risk was heightened, with almost two in five children experiencing repeated or ongoing sexual violence.

    Family and sexual violence are clearly widespread and destructive in Papua New Guinea. This makes it all the more vital that survivors have access to free, quality, confidential treatment, in addition to services beyond medical care to keep them safe. But, at present, this is too-often not the case. Patients face multiple obstacles for obtaining essential medical and psychological care, and they face severely limited options for accessing the legal, social and protection assistance they require. They are thus made 'double victims' – suffering first from brutal attacks, and then from failures in service provision and in the protection system.

    Inadequate or inappropriate responses from the country's hybrid system of formal and traditional justice, and the dysfunction of the protection system, are putting survivors' lives and health at risk. Patients' experiences expose a culture of impunity, and a continuing reliance on traditional forms of justice to solve serious family and sexual violence cases. The widespread tradition of 'compensation', whereby either money or pigs are paid to victims' families for crimes committed, means that perpetrators often remain within their communities, exposing survivors to the threat of repeated violence.

    In Papua New Guinea, traditional village courts sit within the formal system and are legally not authorised to determine criminal matters such as rape or murder, which should always be referred to the district or national courts. However, district courts are located only in provincial capitals, and with more than 80% of the population living in rural areas, a journey to the police or court can mean several days of travel.

    The costs, insecurity and time associated with travel create disincentives to use the formal system for some, and render it impossible for others.

    The police also face their own logistical and budgetary barriers to enforcing the law in remote areas – due to shortages of fuel or vehicles or reluctance to travel to areas with little government presence where police are not welcome.

    However, survivors' stories reveal that these logistical barriers are merely one factor in the complex, interconnected reasons for the continuing under-reporting of violence against women and children and the strong reliance on the village court system, including for serious domestic and sexual crimes A lack of legislative protection and support, combined with a general lack of confidence in the police and formal justice system, also contribute to the under-reporting of family and sexual violence.

    Survivors need dedicated spaces within police stations for trained officers to respond to family and sexual violence cases in an appropriate, sensitive and effective manner. However, while family and sexual violence Units were created for this purpose, some provinces still do not have any (14 provinces out of 22 have established Family and Sexual Violence Units) with a total of only 17 for the whole country.

    In addition, Papua New Guinea's entire police force is understaffed. The UN recommends a ratio of 1 to 400 police officers to the population, but in PNG it is three times lower, at 1 to 1200. Furthermore, stories from survivors reveal that police officers outside the Family and Sexual Violence Units and Sexual Offences Squad remain under-trained or under-committed to deal appropriately with this type of violence.

    Incidents of police misconduct also fuel distrust in the formal justice system, leading to continued disengagement from reporting and pursuing criminal proceedings. In the last three months of 2015 alone, 41 officers in the capital, Port Moresby, were suspended on misconduct charges, while more than 1,600 complaints of police abuse were reported over a seven year period.

    Many survivors of family and sexual violence  have told MSF staff that their dealings with police were met with apathy or dismissive attitudes, at best, and with corruption, aggression and even violent abuse, at worst.

    It is telling that one in ten adult women – 10% (13/129) – who sought treatment in the Port Moresby centre following sexual violence in 2014 and the first six months of 2015 reported that the perpetrator was a member of the police or military.

    Even when police do follow up a case and it makes it to court, the prosecution of perpetrators remains ad hoc, as shown by statistics from Lae, Morobe province, where the probability of a sexual violence case involving a female being successfully prosecuted was just 1 in 338, while one involving a child was 4 in 192

    The barriers to seeking protection through the official legal system contribute to a continuing reliance on village court culture. Papua New Guinea's 'wantok system' promotes a communal culture with a strong preference for dealing with issues within the clan or community internally, rather than through government-enforced national laws. So, although domestic violence was classified as a criminal offence under the 2013 Family Protection Act, it continues to be viewed by many as a private matter to be handled within the family or by traditional community compensation mechanisms.

    Village courts often rely on an approach that prioritizes continuing wantok group unity over survivors' needs. The widespread culture of 'compensation', whereby money is paid to victims' families for crimes committed, means that perpetrators of family and sexual violence often evade imprisonment and any official recognition of their violence as a criminal act.

    Such rulings fail to protect the survivor, or others, from further violence and harm, as the perpetrator is free to return to the community where the victim lives. The compensation approach also reduces incentives to make complaints against perpetrators who come from the same family or clan as the victim – which is the reality for all survivors of intimate partner violence  and almost half the survivors of sexual violence  treated by MSF.

1. The United States State Department's current report on human rights practices in Papua New Guinea states, in part:

   The law criminalizes intimate-partner violence, but it nonetheless persisted throughout the country and was generally committed with impunity.

   Since most communities viewed intimate-partner violence as a private matter, few survivors reported the crime or pressed charges, and prosecutions were rare. The law also gives legislative backing for interim protection orders; allows neighbours, relatives, and children to report domestic violence; and gives police the power to remove perpetrators from their homes as a protective measure. Implementation of the law remained incomplete…

   Traditional village familial networks, which sometimes served to violence, were weak and largely absent when youths moved from their villages to larger towns or the capital. According to Amnesty International, approximately two-thirds of women in the country were struck by their partners, with the number approaching 100 percent in parts of the Highlands. The NGO reported there were only three shelters for abused women in Port Moresby, all privately run, which were often at full capacity and had to refuse women interested in counseling and shelter. The situation was worse outside the capital, where small community organizations or individuals with little access to funds and counseling resources maintained the shelters.

   Violence committed against women by other women frequently stemmed from domestic disputes. In areas where polygyny was customary, authorities charged an increasing number of women with murdering another of their husband's wives.

   Independent observers indicated that approximately 90 per cent of women in prison were convicted for attacking or killing their husbands or another woman.

   Other Harmful Traditional Practices: Customary bride price payments continued to increase. This contributed to the perception by many communities that husbands owned their wives and could treat them as chattel…

   Although the law provides extensive rights for women dealing with family, marriage, and property disputes, gender discrimination existed at all levels. Women continued to face severe inequalities in all aspects of social, cultural, economic, and political life. Some women held senior positions in business, the professions, and the civil service, but traditional and deep-rooted discrimination against women persisted. Women, including in urban areas, were often considered second-class citizens.

   Village courts tended to impose jail terms on women found guilty of adultery while penalizing men lightly or not at all. The law requires district courts to endorse orders for imprisonment before imposing sentences, and National Court justices frequently annulled such village court sentences. Polygyny and the custom in many tribal cultures of paying a “bride price” tended to reinforce a view of women as property. In addition to being purchased as brides, women sometimes were given as compensation to settle disputes between clans, although the courts have ruled that such settlements denied women their constitutional rights.[4]

   [4] US Department of State “Papua New Guinea – Country Report on Human Rights Practices 2015”, 13 April 2016.

2. Other reporting[5] supports a conclusion that rates of domestic violence are very high in Papua New Guinea, with as many as 70 per cent of women experiencing family or sexual violence at least once in their lifetime.

   [5] See for example, US Department of State, “Papua New Guinea 2015 Human Rights Report”, April 2016; “Domestic Cruelty: The Violent Scourge of Papua New Guinea”, ABC March 2016; “Women seek islands of refuge in Papua New Guinea’s sea of violence”, Guardian (Australian Edition) March 2016; “Bashed up: Family Violence in Papua New Guinea”, Human Rights Watch, November 2015.

100.   While there have been some recent measures to improve the responses of the police and the judicial system to these problems, effective state protection is largely absent. There is evidence of unwillingness on the part of the police, particularly in rural areas but also to some extent in Port Moresby and other major population centres, to regard domestic violence against women as a suitable matter for official action and a tendency to dismiss complaints or abet the offender. The judicial system, in particular at village level, has demonstrated a general inability or unwillingness to penalize the few offenders who are charged and brought before the courts.

101.   By and large, the applicant’s evidence during the hearing was consistent with her previous claims and was consistent with evidence provided to the Delegate and the First Tribunal. There was no doubt the applicant was well-prepared for the hearing and her consistent inquiries of the Tribunal for a hearing date evidenced a desire to get on with the hearing and for her to present her case. She had no concerns about a telephone hearing. She addressed concerns raised by the delegate and the First Tribunal and addressed inconsistencies where they appeared. Notwithstanding this, the Tribunal still had its doubts, but in the face of the detail contained in the recounts of the applicant’s circumstances and her explanation of her fears, the Tribunal is prepared to give the applicant the benefit of those doubts that it has. The Tribunal was impressed by the clarity of the applicant’s evidence, its spontaneity and the sheer detail of her recounting of events and the support of the evidence in the documents and letters provided.

102.   The Tribunal has accepted that the applicant has suffered violence from Mr [B] in the past and that it has been reported to police. The Tribunal accepts that she suffered violence on a number of occasions and that this continued over a period of some months, since the applicant sought to obtain child maintenance support from Mr [B]. The Tribunal understands the applicant’s need, indeed desperation to seek maintenance from Mr [B], and that he would resent that. The Tribunal accepts that the applicant had no alternative than to visit Mr [B]’s office or home in order to receive maintenance payments. It is clear to the Tribunal that Mr [B] was not prepared to make the payments voluntarily, or in an orderly way by bank deposit, and was no doubt abusive and physical with the applicant when she “annoyed him by turning up to seek money” at either his office or home. The Tribunal Accepts that Mr [B] might elevate his abuse and threats to greater violence if the applicant returned to PNG and again sought maintenance from him, which the Tribunal accepts that she is likely to do.

103.   The Tribunal has had regard to the fact that violence against women is common in PNG. The applicant has suffered violence from Mr [B] in the past. Her evidence, which the Tribunal accepts, is that Mr [B] lives in Port Moresby which is where the applicant lives. He has displayed a clear propensity for violence, alone and in company. The Tribunal has received corroborating evidence of this which it accepts. The applicant maintains that Mr [B] continues to seek her and will continue to seek her out and continue to try and harm her, regardless of the fact that he has many wives, should they return to PNG, because she will continue to seek maintenance and support from him.

104.   In all the circumstances, the Tribunal accepts that there is a real chance, looking to the reasonably foreseeable future that Mr [B] would again seek to harm the applicant as he has done in the past. The Tribunal finds that there is a real chance that the applicant will be seriously harmed by Mr [B] if she was to return to PNG and that the state would not and could not protect her.

105.   The Tribunal is satisfied that there is a real chance that the applicant would be discriminatorily denied protection against harm for a Convention reason. The leading case on this point is MIMA v Khawar (2002) 210 CLR 1. In that case, 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.

106.   Chief Justice Gleeson was of the view that persecution may result from the combined effect of the criminal conduct of private individuals and the State or its agents; and that a relevant form of State conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the State has a duty to provide protection against such harm. His Honour stated (at [30] – [31]):

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 a duty to provide protection against such harm.  As was noted earlier, this is not a case in which it is necessary to deal with mere inability to provide protection; this is a case of alleged tolerance and condonation…

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.

107.   Chief Justice Gleeson considered that it would not be sufficient to show maladministration, incompetence, or ineptitude, by the local police, but if an applicant could show State tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then persecution may be made out (at [26]).

108.   According to Kirby J, persecution necessarily involves two distinct elements: serious harm and a failure on the part of the State to afford adequate protection. Adopting the formula “Persecution = Serious Harm + The Failure of State Protection”, his Honour concluded that persecution is a construct of the two separate but essential elements of serious harm and failure of protection (at [120]). His Honour stated (at [121]):

…[E]ven if the Tribunal in the present matter were of the opinion that one ingredient in the Convention definition of persecution, namely the family threats and violence against the respondent by non-state actors, was not (as it concluded) committed for reasons of the respondent's actual or perceived membership of a particular social group, that would not be an end of the matter.  If the respondent could show that her well-founded fear of being persecuted was "for reasons of" her being a member of a particular social group because state protection was unavailable to her, that would be enough to meet the Convention requirement.

109.   Justices McHugh and Gummow identified the relevant persecution as the discriminatory inactivity of State authorities in not responding to the violence of non-State actors. Their Honours emphasised that the reason for the persecution must be found in one or more of the five Convention attributes, stating:

84       It should, in our view, be accepted that, whilst malign intention on the part of State agents is not required , it must be possible to say in a given case that the reason for the persecution is to be found in the singling out of one or more of the five attributes expressed in the Convention definition, namely race, religion, nationality, the holding of a political opinion or membership of a particular social group.  If the reason for the systemic failure of enforcement of the criminal law lay in the shortage of resources by law enforcement authorities, that, if it can be shown with sufficient cogency, would be a different matter to the selective and discriminatory treatment relied upon here.

85       That selective and discriminatory treatment, if shown on facts found by the Tribunal, would appear to answer Mason CJ's criterion mentioned in Chan of harm amounting to persecution by denial of a fundamental right otherwise enjoyed by Pakistani nationals, namely access to law enforcement authorities to secure a measure of protection against violence to the person.

…

87       Secondly, and this is crucial for the basis propounded above, the persecution in question lies in the discriminatory inactivity of State authorities in not responding to the violence of non State actors.  Thus, the harm is related to, but not constituted by, the violence.  It is for this reason that it has been unnecessary to consider whether the "accountability" theory mentioned in Haji Ibrahim and reflected in the Minister's submissions on this appeal should be accepted.

110.   The Tribunal is satisfied, firstly, that the applicant is a member of the particular social group constituted by “single women or women in Papua New Guinea”. The concept of “particular social group” was considered by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Applicant S v MIMA (2004) 206 ALR 242, where, after reviewing statements made in Applicant A, they stated (at [36]):

The determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A , a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.

111.   Having regard to independent information relating to the situation for women in PNG, the Tribunal is satisfied that single women or women in PNG constitute a particular social group. The group is identifiable by a common characteristic, namely 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 that characteristic distinguishes the group from society at large.

112.   Notwithstanding that PNG law now criminalises domestic violence, the independent information points to a failure by the relevant authorities to enforce the law. The Tribunal is satisfied in all the circumstances that this constitutes a discriminatory denial of state protection. In this regard, the Tribunal notes that the Special Rapporteur’s report indicates that it is a common experience that reports to the police are not taken seriously. The Special Rapporteur referred to numerous accounts of police officers ignoring complaints, dismissing women from police stations, encouraging women to drop orders, not enforcing interim protection orders or receiving bribes from perpetrators to ignore a case.  The US Department of State has referred to widespread sexual violence committed by police officials and indicated that the unresponsiveness of those officials to complaints of sexual or domestic violence deterred reporting. Based on all the available evidence, the Tribunal accepts that there is a widespread and systemic failure to properly protect women and girls in PNG from violence. This is the case notwithstanding laws criminalising domestic violence.

113.   The Tribunal finds that the applicant, as a single woman or woman in PNG, would face a systemic and discriminatory failure by agents of the PNG state to properly enforce the law. Looking to the reasonably foreseeable future, it finds that there is a real chance that the applicant would be discriminatorily denied state protection against serious harm at the hands of non-state agents for reason of membership of the particular social group of “single women in PNG”. It accepts that her (and her daughter) membership of the relevant particular social group would constitute the essential and significant reason for the withholding of state protection. The Tribunal finds that this would be systematic and discriminatory because it is targeted at females in PNG in particular.

114.   The Tribunal also accepts that the applicant’s previous experiences of violence and threats, both direct and indirectly at the hands of Mr [B], lend probability to the likelihood of future risk of harm at the hands of Mr [B].

115.   In light of the Country Information provided by the Representative above, and the incidences of violence against women and separated and single women in PNG and single women with children in PNG, the Tribunal finds that the real chance of persecution relates to all areas of PNG.

116.   The delegate noted that the applicant had previously reported Mr [B]’s acts of violence against her to the police and that the police constantly referred her to the court system. A letter from the police station itself confirmed that it did this. The Tribunal considered Country Information that confirmed that was a preferred means by which such “private matters” be dealt with. Prosecutions for domestic violence are rare[6] , and the Tribunal finds that effective protection measures are not available to the applicant in PNG.

[6] US Department of State, 2019 Country Reports on Human Rights Practices, 11 March 2020 (  The Tribunal is satisfied that the applicant cannot take steps to modify her behaviour for example by not seeking financial support from Mr [B], so as to avoid a real chance of persecution in PNG as a modification would conflict with a characteristic that is fundamental to this identity or conscience.

118.   The Tribunal discussed the possibility of relocation in PNG. The applicant was adamant that she could not relocate as she had not family or kinship elsewhere in PNG. A previous submission by an earlier representative acting on her behalf was dismissive of the suggestion, stating that Country Information notes that it is difficult for a woman to relocate within PNG. Returning as a single woman to Port Moresby and with a history of violence against her was impossible.

119.   Accordingly, the Tribunal finds that she has a well-founded fear of persecution for reason of her being a member of a particular social group of single woman or woman (or separated) Papua New Guinean women.

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

120. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG.

Conclusion: Refugee Criterion

121. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for reason of her being a member of a particular social group of separated Papua New Guinean women. Her fear of persecution is well-founded as required by s.5J of the Act and therefore she is a refugee within the meaning of s.36(2)(a).

Conclusion: Complementary Protection

122. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG.

Overall conclusion:

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

124. The Tribunal is not satisfied that the other 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 the applicant’s son and daughter are members of the same family unit as the 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

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

(i) that the first named applicant satisfies 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.

Michael Hawkins
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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