1918523 (Refugee)

1918523 (Refugee) [2023] AATA 3388 (27 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Abby Jiang (MARN: 5513479)
CASE NUMBER:  1918523
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:27 July 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 27 July 2023 at 1:29pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – membership of particular social groups – single mother promised in marriage who has experienced family violence – beaten by brother for refusing marriage with older associate of family – no contact with adoptive family in city and likely to have to return to home village – limited education and no work history – now pregnant with second child – credible claims and evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (2A), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 25 January 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 10 July 2019. The applicant subsequently provided a copy of the delegate’s decision to the Tribunal.
As noted above, the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 26 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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).
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
According to the protection visa application, the applicant claims to be a citizen of PNG and provided a copy of her PNG passport to the Department. Based on this material the Tribunal finds that the applicant is who she says she is, and a national of PNG. PNG is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Issues
The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to PNG she would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection which includes (but is not limited to) the following documents which have been considered by the Tribunal:
·the applicant’s protection visa application form submitted on 25 January 2017 and the accompanying identification documents and an accompanying list of country information relating to sexual violence forcing girls out of school;
·copy of the applicant’s PNG passport and her Queensland driver’s license;
·Australian Government AUSTRAC reports;
·letter under the hand of [Mr A] dated 16 January 2017 in which he (applicant’s customary adopted brother) purports to be the applicant’s uncle and has knowledge of her purported arranged marriage;
·applicant’s application for review (10 July 2019);
·protection visa decision record of 14 June 2019 (provided to the Tribunal by the applicant on 12 September 2019;
·letter under the hand of [Dr B] of [Clinic] certifying that the applicant is pregnant and that her due date of confinement is [Date];
·the administrative and movement records of the Department relating to the applicant;
·applicant’s Statutory Declaration of 18 July 2023 (emailed to the Tribunal on 19 July 2023);
·letter under the hand of [C], [Work role] (unsigned) of [Organisation 1] (emailed to the Tribunal on 19 July 2023);
·Statutory Declaration of [Mr. D] dated 14 July 2023 (emailed to the Tribunal on 19 July 2023);
·Two copies of photographs of the applicant depicting a scar on the applicant’s [Body part]; and
·Submission from the applicant’s representative, [Organisation 2] dated 20 July 2023 (emailed to the Tribunal on 20 July 2023).
In the applicant’s representative’s submission of 20 July 2023, it is submitted at paragraph 30 that:
We submit that [the applicant] is at risk of the above-mentioned persecution by reason of, either cumulatively or separately, her membership of the following social groups:
·Women in PNG;
·Women and single mothers in PNG;
·Women in PNG without male protection;
·Women who have left abusive partners; and
·Women who have experienced domestic and family violence.
The submission at paragraph 31 also submits that in the alternative the applicant is at more than a remote risk of suffering significant harm as a necessary and foreseeable consequence of being returned to PNG. Additionally at paragraphs 32 and 33 with reference to country information it is submitted that there are not effective protection measures in PNG available to the applicant and that state protection is not effective and would not be of a sufficient standard that there would not be a real risk that she would suffer significant harm.
Later at paragraphs 97 to105 the submission addresses the issue of relocation submitting that the applicant cannot avoid persecution through relocation within PNG.
Claims for protection
The applicant in her visa application stated that she was born in [City], PNG on [Date] but only recalls being brought up in [Town 1]. She left her family village after being customary adopted by [Ms E] when she was about [Age]. She then went to live with her adopted family in Port Moresby. She claims that:
·when she returned to [Town 1] to visit her biological family she was offered in marriage by her brothers and other members of her family to an older local businessman who offered a ‘Bride price’ of money and pigs to her immediate family and cousins;
·she refused to marry this older man who was almost [Age] years old, because of his age and was then beaten by her older brother at her village;
·she ran away to a nearby village where she sought treatment for her wounds from the beating she received from her brother;
·her family made it clear that they would track her down and physically drag her back to her village;
·she fears she will be severely beaten and maybe killed by her family and other villagers if she returns to PNG and refuses to marry as arranged and particularly so when she can no longer prove that she is still a virgin;
·there is no police presence in her area and tribal law is paramount and even if the police were made aware they would not interfere; and
·her family and other villagers will be able to track her down anywhere in PNG and punish her.
New Claims
The applicant in her Statutory Declaration of 18 July 2023 outlines:
·her adoption into the [Surname] family and her life with her adopted family in Port Moresby;
·her arranged marriage organised by her biological family in [Town 1] and her refusal to marry her proposed husband;
·her visits to Australia and her application for the visa, together with her relationships in Australia resulting in the birth of her daughter [Miss F] on [Date] to her then partner [Mr G] who is a PNG National from [Province].
·her current pregnancy to an unknown father;
·her contact with her father;
·her fears that as a single mother that she will be at risk if she returned to PNG; that her brothers will harm or kill her for bringing them into shame for not marrying as had been arranged and having now had children outside of marriage; as being a single mother she will be at risk of rape and harm; that she will not be able to access basic necessities like shelter and food as she and her children do not have a male protector; and, that she and her children will not be able to survive as she cannot support herself and her children if she was forced to return to PNG.
Department interview
The applicant was interviewed by the Department on 21 March 2019.
Delegate’s decision
The delegate’s decision of 14 June 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant’s home area is [Town 1] but rejected the remainder of the applicant’s claims in their entirety. The delegate found that the applicant’s written claims and her responses during her interview were unclear, lacking in detail and not substantiated by any other evidence. The delegate did not accept that the applicant’s family wanted to force her to marry an elderly businessman and that she had run away to Port Moresby for her safety, and that her family are wanting to harm her for her refusal to marry as arranged. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 23 June 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 26 July 2023 at 9:30 am noting that on 8 June 2023 the applicant had been invited to attend a hearing on 7 July 2023 which had been rescheduled by the presiding Senior Member. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Review hearing – 26 July 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English and Pidgin (PNG) languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal as to her understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, explained that she understood the criteria and that it had earlier been explained to her by a lawyer.
Upon the request of the applicant’s solicitor the Tribunal provided an outline of the refugee and complementary criteria to the applicant, who then acknowledged that she understood the criteria.
Given the applicant’s obvious anxiety, her [grade] level of education it was discussed with the applicant and her solicitor that she could if agreeable to do so, adopt her fifteen-page Statutory Declaration of 18 July 2023 as being her evidence before the hearing as to her claims.
Upon the applicant agreeing to this course, she was questioned as to how her declaration had been taken by her representatives, [Organisation 2]. The applicant explained (and this was confirmed by her solicitor) that with the assistance of several interpreters and over a period of time her solicitor who appeared with her at the hearing had prepared her declaration by recording her version of events. She then had the declaration read back to her by an interpreter and she had adopted the contents as being true and correct and then signed the declaration.
The Tribunal then discussed with her solicitor the written submissions that had been presented to the Tribunal in which it had been submitted that the applicant was at risk of persecution by reasons of, either cumulatively or separately, her membership of the particular social groups of Women in PNG; Single women and single mothers in PNG; Women in PNG without male protection; Women who have left abusive partners; and Women who have experienced domestic and family violence.
The Tribunal then proposed to move on to posing questions to the applicant as to her claims of fearing harm if she was to return to PNG with reference to her Statutory Declaration. The Tribunal informed the applicant and her solicitor that the Tribunal on the evidence before it was satisfied that the applicant faced a real chance of persecution involving serious harm if she was to return to PNG in the reasonably foreseeable future on account of her membership of the particular social groups (PSG) of ‘women promised in marriage in PNG’ and ‘single mothers in PNG without male protection’, but that the Tribunal was yet to be satisfied that the applicant could not return to and obtain protection from, her adopted family in Port Moresby.
The applicant’s solicitor indicated to the Tribunal that there was no objection to the course being proposed by the Tribunal especially given the applicant’s obvious poor communication skills, general understanding of the proceedings and her obvious anxiety as to having to give oral evidence before the Tribunal.
The Tribunal then questioned the applicant as to when she had last spoken to any of her adopted family, the [Surname] family who to her knowledge continue to reside in Port Moresby PNG. The applicant told the Tribunal that she had seen her adopted sister [Ms H] in 2017 when she had visited the applicant in Australia and had stayed overnight with the applicant and her then partner (the father of her daughter [Miss F]) at [Town 2]. She explained that [Ms H] and her partner had an argument when [Ms H] had visited and she (the applicant) had lost or damaged her phone after that visit and no longer had the contact details for [Ms H] or any of her adopted siblings and/or her adopted mother, [Ms E].

The applicant further explained that she had also understood from [Ms H]’s visit that [Ms H] and her other adopted sister now had their own families and that her adopted mother, [Ms E], was very old and that none of them would be able to accommodate, care and support the applicant if she returned to PNG.
The applicant was also questioned as to the 2017 letter which she had provided to the Department from her adopted brother ([Mr A]) in which he reported that he was her uncle. She explained that her adopted brother did not speak English and must have got confused when he described himself as her uncle. The Tribunal queried the applicant why she had not since loosing her adopted family’s contact details tried to contact her adopted brother on the mobile phone number that was listed on his letter.
In reply the applicant explained that she had understood that her adopted family had no capacity or ability to further assist her given they had their own families and she had not thought to try and contact her adopted brother on the phone number recorded on his letter.
After raising this issue with the applicant’s solicitor the applicant’s solicitor requested a break in the hearing so as she may consult with the applicant as to the DFAT country information that the Tribunal had provided to the applicant and make some inquires as to the telephone number that had been listed on the applicant’s adopted brother’s letter.
When the hearing resumed the applicant’s solicitor indicated to the Tribunal that she had discussed the DFAT country information that the Tribunal had identified and provided to the applicant and that the applicant agreed with that information (outlined below). The Tribunal was also informed that they had attempted to call the PNG number provided on her adopted brother’s letter but that the phone number was uncontactable. The Tribunal then also made an attempt to call the number and make contact with the applicant’s adopted brother but was unable to do so as the number was again uncontactable.
The applicant under questioning also told the Tribunal that the only person she had spoken to in PNG recently was her father who was very old and sick. She explained that she could not return to her home village as her father could not protect her from her brother who had beaten her for not agreeing to the arranged marriage, he and her other brothers had arranged for her. She explained in accordance with her evidence in her Statutory Declaration that when she had refused to marry the man her brothers had selected for her, who was at that time about [Age] years of age, while she was in her teens her brother [Mr I] had beaten. She explained that while [Mr I] beat her, her other brothers and parents looked on and did not intervene. She explained that if she returned to her village of [Town 1] she would be punished and beaten for not committing to the marriage in which her brothers and family expected to receive a ‘Bride price’ of money and pigs and as she now had a child and was pregnant with her second child she would further be beaten because she had children but no husband and that no ‘Bride price’ had been paid. She explained that she would be seen as having brought on shame to her family and they would be traditionally bound to punish her.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
Country information
The Tribunal has taken into account the DFAT Country Information Report Papua New Guinea, 6 September 2022, as relevant, including the information under the heading of ‘Wantokism/Wantoks’ at the Glossary of the report where it provides that:
‘Wantokism’ is a system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society. Wantokism affects most aspects of contemporary life in PNG, including in business and government. In the Tok Pisin language, Wantok means ‘One Talk’, referring to the language of the tribe or clan to which a person belongs. In PNG, the overall welfare of the tribe and its members is paramount. Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures those members of the tribe less able to look after themselves are supported.
In contemporary PNG, wantokism includes additional relationships, such as those between school classmates or work colleagues. People who gain a position of power or responsibility – for example, as a politician, public servant or business owner – are expected to look after their wantoks. Business people are expected to make significant contributions when traditional obligations are needed, such as compensation or ‘bride price’ payments. Senior politicians are expected to contribute even larger sums to their wantoks. Wantokism may involve state officials pressured to protect the interests of their wantoks above their legal duties to provide services or protection impartially to an individual. Officials can be reluctant to uphold the legal rights of those outside their wantok group if it requires them to act against – and especially prosecute – those within their group.
Under the heading of ‘Women’ at 3.17 to 3.25 where it is reported at 3.19 to 3.20 and at 3.22 and 3.25 that:
DFAT assesses that women across PNG face a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict their ability to fully participate in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in Highlands provinces are at particular risk, although violence against women occurs nationwide. Women who are subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.
‘Bride price’ payment remains a common cultural practice in PNG (including among elites). A bride price is a sum of money ranging from PGK2,500 (about AUD1,050) to PGK300,000 (about AUD126, 490) paid to the woman's family by the groom or his family. Bride price is a long-standing Melanesian tradition, and is intended to strengthen familial bonds. However, in recent years it has become increasingly monetised and led to a sense of ‘ownership’ of wives in some cases, giving husbands a sense of entitlement which can be seen as permitting violence. Furthermore, an obligation to pay back bride price in the case of marriage breakdown has complicated the ability of women to leave violent relationships, with their own families sometimes pressuring women to return to their husbands to avoid triggering such an obligation…
FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Levels of GBV by police officers themselves are high. Police are more likely to act on complaints about perpetrators outside the family, if they act at all. However, the RPNGC has made some progress in recent years, establishing Family and Sexual Violence Units (FSVU) in every province. Sources told DFAT FSVUs represent progress in the policing of GBV, especially with regard to the willingness to investigate and make arrests, and in their connectedness to other services. However, there are not enough FSVUs to respond adequately to the scale of the problem. There are only 106 FSVU officers across the country and at the time of publication, there is a single FSVU officer in Tari, capital of the Highlands province of Hela, to cover the whole province (population of around 250,000). FSVU officers are typically subject to the same resource constraints as the rest of the RPNGC…
While women’s refuges exist in PNG, they are insufficient for the level of GBV that exists. Sources report that Port Moresby, a city of 800,000 people, has only six safe houses for women suffering GBV, open to the public, and mostly run by faith-based organisations. Some of these safe houses have as few as two rooms, one for the survivor and one for a carer, while others can accommodate up to 10 survivors in a shared room. The situation for abused children is even tighter, with very few safe houses able to accommodate unaccompanied children.
And under the heading of ‘Police’ at 5.3 to 5.6 where at 5.3 and 5.6 it is reported that:
The Royal Papua New Guinea Constabulary (RPNGC) is the national police force responsible for the investigation of crime and maintaining internal security in all regions of the country. At the time of independence in 1975, police services were estimated to only cover around 10 per cent of the country’s total land area and 40 per cent of the population. Since then, the size of the RPNGC has increased by only 30 per cent, while the overall population has more than quadrupled. In 2022, the strength of the RPNGC is approximately 5,500 personnel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC…
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.
Analysis
The Tribunal found the applicant to be most anxious and nervous at the hearing but that she sought to assist and cooperate with the Tribunal by without hesitation answering the Tribunal’s questions. The Tribunal found the applicant’s replies to the Tribunal’s questions to have been consistent with her detailed and comprehensive Statutory Declaration which also provided an explanation as to the history of her claims and how her claims had been prepared by other persons which had resulted in some confusion and the misrepresentation of some facts to the Department.
The Tribunal found the applicant to be a truthful and sincere witness of credit and accepts the applicant’s evidence as contained in her Statutory Declaration of 18 July 2023 and her oral evidence at the hearing.
Membership of the PSG’s of ‘women promised in marriage in PNG’ and ‘single mothers in PNG without male protection’
The Tribunal on the evidence before it accepts that the applicant had been promised in marriage to an older man by her brothers and that upon her refusal to marry this man that her brother [Mr I] beat her while her family looked on, not intervening at any time during her beating.
The Tribunal is also satisfied on the evidence before it that if the applicant was to return to PNG, she would likely have to return to her family village in [Town] to seek her family’s support for herself and her children. Given her very limited level of education and her virtually non-existent work history it is accepted that without the assistance of others she would not be able to support herself and her children anywhere else in PNG. As she has had no contact with her former adopted family since 2017, when her adopted sister [Ms H] last visited her in [Town 2]. And noting that no members of her former adopted family have apparently made any attempts to contact her since [Ms H]’s argument with her then partner; it is accepted that she cannot expect and/or rely upon her former adopted family to assist her in any way if she returned to PNG.
In this regard, the Tribunal has considered the country information which is outlined above at paragraph 45 as to ‘Women’ and ‘Police’ and has noted that it provides in part that:
DFAT assesses that women across PNG face a high risk of societal discrimination due to long-standing traditional values and gender roles which restrict their ability to fully participate in the community and workforce…
…Women who are subjected to gender -based violence are unlikely to be able to avail themselves of adequate state protection or support services.
And that:
FSV is still seen by many police officers (and many men in PNG) as a private matter in which the state should not intervene. Levels of GBV by police officers themselves are high. Police are more likely to act on complaints about perpetrators outside of the family, if they act at all…
And further that:
While women’s refuges exist in PNG, they are insufficient for the level of GBV that exists.
Further as a single mother who is now separated/divorced and without the support and protection of a male protector and given the prevalence of sexual and family-based violence and gender-based violence throughout PNG as is outlined above. The Tribunal accepts that the applicant would be unable to relocate within PNG and support herself, her young daughter and her yet to be born new child. Additionally, the applicant would not be unable to return to her family village for the reasons outlined above as she would most likely be subjected to further violence from her brothers because of her failure to marry as they had arranged and because she is an unmarried single mother.
Therefore, the Tribunal finds that the applicant does face a real chance of persecution involving serious harm if she was to return to PNG in the reasonably foreseeable future because of her membership of the PSG’s of ‘women promised in marriage in PNG’ and ‘single mothers in PNG without male protection’.
The Tribunal finds that the applicant’s fears as to being persecuted for her membership of these PSG’s is well-founded.
Refugee criterion
The Tribunal, having considered all of the applicant’s claims both individually and cumulatively, does accept that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of her membership of the particular social groups of ‘women promised in marriage in PNG’ and ‘single mothers in PNG without male protection’ in all areas of her receiving country, PNG: s 5J(1)(c). The Tribunal finds on the evidence before it that the applicant in this regard cannot rely upon the PNG police or any other authority in PNG to provide protection to her and as such there are not effective protection measures available to the applicant from the PNG authorities: s 5J(2).
Therefore, the Tribunal finds that the applicants’ fears of persecution arising from her membership of the particular social groups of being a ‘women promised in marriage in PNG’ and a ‘single mother in PNG without male protection’ are well-founded as required by s 5J of the Act, and therefore, the applicant is refugee within the definition of s 5H of the Act.
Having found that the applicant is a refugee the Tribunal has also considered whether the applicant has a right to enter and reside in another country other than Australia. The Tribunal finds that the applicant does not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies
s 36(2)(a) of the Migration Act.
David James
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3388

27 July 2023

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