1921621 (REFUGEE)
[2024] ARTA 515
•22 October 2024
1921621 (REFUGEE) [2024] ARTA 515 (22 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1921621
Tribunal:General Member H Kim
Date:22 October 2024
Place:Sydney
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the order that the applicants meet s 36(2)(a) of the Migration Act.
Statement made on 22 October 2024 at 5:04pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – single women without male protection – race – mixed-race PNG nationals – gender-based violence – physical assault – land rights dispute – fear of killing – tribal violence – mental health issues – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 424, 499
Migration Regulations 1994, Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Rajasundaram v MIMA (1999) 51 ALD 682
Selvadurai v MIEA (1994) 34 ALD 347
SZTEQ v MIBP (2015) 229 FCR 497Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 July 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be mother and stepdaughter who are nationals of Papua New Guinea (PNG). They applied for the visas on 14 December 2017 with the mother as the primary visa applicant (hereafter referred to as ‘the applicant’) and the stepdaughter as a dependent applicant (‘Applicant 2’) not raising any independent claims of her own. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations and are not members of the same family unit as a non-citizen who holds a protection visa.
On 6 August 2019, the applicants applied for review of the delegate’s decision to the Administrative Appeals Tribunal (AAT) and provided a copy of the delegate’s decision record with their review application.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicants appeared before the Tribunal on 21 October 2024 to give evidence and present arguments. The applicants were represented in relation to the review.
BACKGROUND
The applicant is a citizen of Papua New Guinea, born in Port Moresby in [specified year], as evidenced by copies of her various Papua New Guinean identity documents submitted to the Department and the Tribunal. According to the family details provided in her protection visa application and as corroborated in the Departmental interview, the applicant’s father and [a sibling], [Sibling A], have passed away, her mother lives in [Town 1] on the family [farm] and visits [Brother A], the applicant’s biological [brother], who resides in Port Moresby, and [Sister A], lives in Sydney, Australia. She also provided in her application the details of [number] younger half-siblings who live in Papua New Guinea. At the Departmental interview, the applicant also provided that she has paternal relatives in Melbourne and a [further] relative in [City 1].
The applicant married in 2013 to [Husband A], a Papua New Guinea citizen born in [Town 1] in [year]. Through the marriage, she has [number] stepchildren: [Stepchild A][Stepchild B][Stepchild D][Stepchild C][Stepchild E][Stepchild F][names, places and years of birth deleted]. At the Departmental interview, the applicant added that: [Stepchild A] who is separated, lives in the family village in [Town 1] with [their child]; [Stepchild B] and [Stepchild C] do seasonal work in [Country 1]; [Stepchild D] is studying in a university in [a named town]; [Stepchild E] is studying at a university in Port Moresby and lives with [Applicant 2’s] grandparents; and [Stepchild F] lives with [the applicant’s husband] at a [location] in [Town 1].
A summary of the applicant’s residential and employment history is as follows:
·She grew up in Port Moresby with her mother and siblings and would visit her father in the family [farm 1] in [Village 1], [Town 1], which her parents started in around [year]. When she was around [age] years old (around 1994), she moved back to [Town 1] to stay with her father who was a mixed-race, well-known [businessman] who had a good relationship with many tribes in the area. Between [specified years], the applicant completed a number of [courses] in [locations] and worked as a customer service officer at a company in [Town 1]. She then variously worked as [an occupation 1] at the family [farm] ([specified years]), administration at [type] company in [Town 1] ([specified years]), as a secretary in [Town 1] ([specified years]), administration in Lae, Morobe province ([specified year]), as [an occupation 2] in [Town 1] ([specified years]) and as [an occupation 3] in [Town 1] ([specified year]). When she lived in Lae (Feb-Oct 2005), she lived in a compound with her [Brother A], assisting him with starting a business. After their [Sibling A] passed away (in 2018), [Brother A] was put in charge of the family [farm].
·Between [specified years], the applicant lived with [Sibling A] in Port Moresby for a few months until finding a place at ladies’ hostel. She then moved to a flat with a few girls from the hostel. During this period, she worked in administration at a [business] in Port Moresby ([specified years]) and as [an occupation 4] in Port Moresby ([specified years]).
·She and her husband got together in 2008, and she moved to her husband’s village in [Village 2 variant], [Town 1] to join him and his children. Before meeting her husband, the applicant and her family suffered from financial difficulties in Port Moresby. From December 2010, she worked as a [manager] at [Employer 1] in [Town 1]. From July 2013, she lived in the employer provided accommodation in [Town 1] until she came to Australia with Applicant 2 ([age]-year-old at the time) [in] October 2017 on visitor visas. She told her employer that she will not be returning to Papua New Guinea in January 2018, but her husband and [number children] lived in the employer accommodation until April 2018.
·The applicants stayed with the applicant’s [aunt] in [City 2] for a few weeks after arriving in October 2017. They then lived with the applicant’s sister [Sister A] until finding their own accommodation. The applicant has worked in [specified jobs] in Australia. Currently she works full-time in childcare and she supports Applicant 2 who is a full-time student. They live together in Sydney with another young girl from Papua New Guinea.
The applicant previously travelled to Australia on visitor visas, including [in] August 2014 and [in] June 2015. She also travelled to [Country 2] [in] July 2017 to seek medical treatment in relation to [a medical condition] she had been experiencing.
As noted above, the applicants arrived in Australia on visitor visas [in] October 2017 and applied for protection visas on 14 December 2017. The applicant provided to the Department her statement of claims, her identity and medical documents and other material including support letters and some articles. She attended an interview with a delegate of the Department on 8 April 2019, and submitted further medical documents and articles after the interview. Since lodging her review application to the Tribunal on 6 August 2019, the applicant submitted to the Tribunal articles about gender-based violence in Papua New Guinea (on 24 July 2020) and 2 further statements dated 28 July 2022 and 20 April 2024. Prior to the hearing on 21 October 2024, the applicant and her representative also submitted additional material in response to the Tribunal’s request for information and in support of the applicant’s claims. Among these submissions included a copy of the ‘Papua New Guinea Medical Certificate of Death’ of [Husband A], the applicant’s husband, stating that he died [in] May 2021 in [Town 1] due to [another medical condition].
Evidence before the Department
Protection visa application and supporting documents submitted in December 2017
The applicant provided detailed information regarding her background as summarised above. Her reasons for seeking protection in Australia broadly related to the following 3 claims: hardship she faced as a woman in Papua New Guinea; fear of a riot or direct attack on her family due to land rights dispute; and stress, anxiety and health condition due to living in fear in Papua New Guinea. In summary, she provided the following information in support:
·She experienced harm as a single woman in PNG. When she lived in her family [farm 1] within the paternal family village in [Town 1] in her 20s, she experienced that it was not safe walking through the [farm] to and from work and school. As many young women were raped mostly by men from the neighbouring tribe, she had to wait everyday at a safe spot for people to walk home with. When she lived in Port Moresby from around 2006, she also experienced that it was not safe to walk home alone after work and she had to run to safety a number of times. On 2 occasions, she was robbed on the bus, including one time at knife point, but none of the passengers or the driver helped her. At the ladies’ hostel in Port Moresby, a bullet shot by an armed intruder nearly missed her. After she returned to [Town 1] in 2009, she also experienced other instances of violence including driving through a riot of rocks thrown by men damaging buildings and driving family members and other women to safety during fights in the village. Her stepdaughters including Applicant 2 and her mother have been threatened at knife point in public spaces for their mobile phones and money. In August 2017, the applicant [a] Police [Commander] to carry out daily patrol in [Town 1] to protect women and girls, but nothing has been done. The applicant has recently read articles about women accused of sorcery being burnt all over Papua New Guinea including in [Town 1] and Lae.
·On [specified days in] 2009 and [2010], there was a riot in [Village 2] (her husband’s village) caused by a drunken fight between the local young men and the neighbouring tribe’s men. Hearing gunshots, the applicant’s family fled to the applicant’s brother-in-law’s home first, then to a neighbouring village. Her husband, his brothers and other men remained in the village to protect it, while the applicant and the children stayed at her cousin’s for 2 weeks, then moved to her mother’s place at the family [farm] for almost 3 months. Her husband sought police help but they did not help saying it was just drunken brawlers and it was not the first time that had happened in the area. A letter from [Officer A] of [Town 1] [Police] dated 1 February 2010 and a letter dated 31 January 2010 from the [Church Leader] of [Town 1] state that up to 75 houses were burnt, affecting over 2000 people, and there were massive damages to properties. The applicant claimed that her husband’s car was also burnt and their house almost got burnt. When the family returned to the village, the applicant’s husband explained that the raid was due to a dispute over land for which his [Relative A] had the title but the tribe wanted it back and had been fighting over it in court for [many] years. If the [Relative A] wins in court, the men will harm them in the village or in the [Town 1] area. On a number of occasions when the applicant returned to the village to visit family, she had to get away quickly due to fights erupting amongst young men, triggering her panic attacks.
·In April 2013, while the applicant was employed by [Employer 1] in [Town 1], armed men shot dead [Country 3] man, [named], in the applicant’s employer’s apartment and raped the applicant’s [Country 3] colleague. Although terrified, the applicant remained in employment to reopen the business as she was a local. She was put in charge of security and became the manager. The employer offered the applicant and her family to live in his apartment and they started living there. Her [Country 3] colleague also returned to work to manage the business with the applicant. In May 2016, the applicant was threatened at work into giving a ‘donation’ to a local youth criminal group who appeared to be associated with the commander of the local police station. The commander wrote a letter to the applicant’s workplace suggesting that unless the donation was paid, the business would face an armed robbery. The applicant and her colleague paid the donation, and the applicant also had to pay a mobile police squad (over 200 kina per day) to watch over them and the business.
·Due to her witnessing and experiencing numerous violent incidents, the applicant has developed anxiety, affecting her ability to work and family life. She gets panic attacks triggered by conflict of any kind and she has had psychical health condition [specified], for which she has been receiving treatment since 2013. Her doctors, including [Doctor A] of [a named] Medical Clinic, who provided a letter dated 15 October 2017, could not find a physical cause of the applicant’s condition despite extensive consultation and laboratory works, and have concluded that it is due to her anxiety.
·She cannot return to live in her family [farm 1] because of a dispute over this land between her brother and half-siblings. She does not have any title to the land as her father instructed it was to be passed to the sons. She previously tried to live in Port Moresby and was exposed to the same kind of violence. Her husband and stepsons cannot leave [Town 1] to live with and protect the applicant and the other children in another part of Papua New Guinea because they have land to protect in [Town 1].
Pre-interview submissions in March 2019
On 28 March 2019, the applicant submitted 2 Australian GP referral letters dated 15 October 2018 and 22 March 2019 for ongoing PTSD management under a mental health plan and a progress psychologist report dated 10 January 2019. The psychologist’s brief report notes that the applicant has settled well in Australia in a safe and secure environment but news from Papua New Guinea would trigger her depressive and anxiety symptoms and recommends that the applicant continues with present medications (not specifying the medication) and supportive psychotherapy (details not provided).
The representative submitted that it would be ‘too dangerous’ for the applicant to return to PNG and that she would get no protection from the authorities in PNG. He did not explain the relevance of the general country information he referred to in the submissions to the applicant’s specific claims and some of the extracted information did not appear to be relevant to the applicant’s personal circumstances (for example, family violence and maternal deaths, none of which had been claimed by the applicant). In summary, the relevant aspects of the general country information included: police abuse and corruption remain widespread in PNG with little accountability and transparency; and violence against women in PNG is extremely serious and Médecins Sans Frontières estimates 70% of women in PNG will be raped or physically assaulted in their lifetime.
Departmental interview on 8 April 2019 and post-interview submissions on 14 April 2019
The applicant attended an interview with the delegate and gave oral evidence in relation to her claims. She submitted 3 news articles corroborating her claim that [the Country 3 man] was murdered in her employer’s apartment in April 2013. She gave evidence in English and her representative was present at the interview. I have listened to the audio recording of the interview and I am satisfied that the delegate’s detailed summary of the evidence at the interview as set out in the decision record accurately reflects the applicant’s oral evidence. In summary, the applicant gave coherent and detailed information about her family composition and life in Papua New Guinea and clarified her residential and work history as outlined in the Background section above. She claimed that she feared returning to PNG due to the land dispute of her husband’s family; the land dispute over the family [farm 1] between her siblings; and her being a mixed-race ‘Caucasian’ woman in PNG. The applicant also raised a new claim that her brother [Brother A] was shot twice in June 2018 and [his] daughter was bashed in the head, but she did not know whether they were targeted for any reasons.
After the interview, the applicant submitted additional medical evidence and 2 news articles. The medical evidence including letters from her PNG GPs ([Doctor A] of 18 June 2017, [Doctor B] of 10 June 2016 and 19 June 2017), [a] Neurophysiology [Report] of 12 July 2017 (from [Health Service 1], [Country 2]) and consultation notes of 25 October 2016 from an Australian counsellor, [Counsellor A], corroborate the applicant’s claim that she had consulted local and international medical professionals regarding her anxiety, panic attacks, [and physical conditions]. The news article dated [in] May 2010 refers to the January 2010 riot and that [a named businessman], was found not guilty of [number] counts of arson, 3 counts of attempted murder and 1 count of murder due to insufficient evidence of his involvement. The other news article dated [in] April 2015 reports that [details deleted]. However, neither the applicant nor the representative explained how these articles are relevant to her claims.
Although the applicant and the representative indicated at the interview that they would provide information on the targeting of mixed-race PNG nationals, no information including country information specifically in this regard was submitted by the applicant or the representative. The representative in his email to the delegate on 14 April 2019 repeated the reference to the general country information indicating that violence against women in PNG is extremely serious.
Delegate’s decision of 19 July 2019
The delegate found the applicant to be honest, trustworthy and forthcoming in providing responses to questions put to her at the interview. The delegate had regard to the applicant’s mental health issues and considered that while the applicant had difficulty recalling some information, she had the capacity to accurately answer questions put to her at the interview and in her post-interview submissions.
The delegate accepted that the applicant considers [Town 1] her home region. They accepted the applicant’s experiences of harm while residing in Port Moresby including that she was once threatened with a knife and had her bag pulled from her in public transport, and that she experienced and witnessed many accounts of violence in PNG including the 2010 riot in [Town 1], the murder at her employer’s residence in 2013 and the threat to pay a ’donation’ in 2016. They accepted that the applicant has a subjective fear of harm due to the land disputes involving her family [farm] and her husband’s inter-tribal land; the criminal activity that occurred during her employment with [Employer 1]; and being a woman and of mixed-race appearance in PNG. The delegate also accepted the applicant’s explanation for the delay in applying for a protection visa, being that she was in Australia to address her physical and mental health issues that had been unable to be resolved in PNG or [Country 2].
In assessing the applicant’s claims under the refugee criterion, the delegate found that the applicant’s fear of harm due to land disputes over her family [farm] and in relation to her [Relative A] within their tribe and her claim to be targeted as an employee at [Employer 1] were not for any of the reasons provided in s 5J(1)(a) of the Act. Regarding her claim to be harmed for her mixed-race appearance, the delegate noted that the applicant has an extensive family network in PNG and that no information has been presented that any other family member including the applicant’s [siblings] from her father’s side have experienced targeted harm on account of their mixed-race appearance. While the delegate accepted that the applicant appears to have been the victim of common criminality on several occasions, they were not satisfied that the applicant faces a real chance of racial persecution if she were to return to PNG due to the lack of corroborating country information identifying any issues for mixed-race people in PNG and having considered the applicant’s individual experiences. Regarding the applicant’s fear of harm due to being a woman in PNG, the delegate had regard to the country information indicating that Papua New Guinean women face a high risk of gender-based violence and societal discrimination. While accepting that the applicant has been the victim of what appears to be common criminality on several occasions and that she would be likely to face a degree of hardship due to PNG’s gender inequality issues, the delegate was not satisfied that the applicant will experience a real chance of serious harm amounting to persecution. The delegate was satisfied that the applicant has the support of her family kinship network in Australia and PNG which will continue if she were to return to PNG.
In assessing the claims under the complementary protection criterion, the delegate accepted that the applicant witnessed tribal violence in the past due to a land dispute involving her [Relative A's] rights to customary land. The delegate noted the applicant’s evidence that she only witnessed this violence when residing in her husband’s village, that she was not harmed in relation to this land dispute while residing with her husband in the employer-provided residence in [Town 1] and that her husband continues to live in [Town 1] with their daughter outside his village. The delegate was satisfied that the applicant could return and live with her husband and would not face a real risk of significant harm if she returned and resided with her husband in PNG. The delegate also accepted that the applicant’s family members are disputing the family [farm] land rights and that the applicant may be perceived to support her brother [Brother A] who has the rights to her father’s land. However, the delegate found there is no information to indicate that the applicant was targeted or harmed by her family members in PNG. Her evidence regarding the claim that [Brother A] was harmed in June 2018 was that she did not know the reason for the attack and there was no information that he was harmed by other family members. The delegate considered that generalised violence is prevalent in PNG and also had regard to the country information that there are judicial processes for negotiating land rights in PNG. Accordingly, the delegate found that the applicant does not face a real risk of significant harm due to her family land negotiations.
The delegate accepted that the applicant was intimidated into paying a bribe on behalf of her employer at [Employer 1 variant], having regard to the country information that corruption is an issue in PNG including police requesting bribes for services. While the delegate acknowledged the distress this would have given the applicant, they noted that the applicant and her husband continued to live in the employer compound after the event and the husband and children continued to live there until April 2018. Having regard to the information cumulatively, the delegate considered that it was reasonable to believe there was no further incidence of coercion after the event nor that the issue has given the applicant an adverse profile with any other tribe.
Finally, although the delegate accepted that the applicant suffers from mental health issues as a result of her experiences in PNG, they were satisfied that the support network from her family in PNG and Australia would continue if she were to return to PNG. The delegate found the applicant’s preference to remain in Australia on the basis of her claims were not within the scope of the refugee or complementary protection criteria. Accordingly, the delegate was not satisfied that the applicant is a refugee or that there is a real risk she will suffer significant harm in Papua New Guinea.
Evidence before the Tribunal
Pre-hearing submissions on 24 July 2020, 2 August 2022, 22 April 2024 and October 2024
On 24 July 2020, the applicant submitted to the Tribunal 3 news articles relating to the seriousness of gender-based violence in Papua New Guinea. An editorial article from Papua New Guinea Post-Courier dated 10 June 2020 refers to the brutal beating of a married woman by her army officer husband and opines that women must be protected, violence in all its forms must be rejected, and that the government and all politicians in parliament must bring violence against women under control. Another Post-Courier article dated 26 June 2020 reports on a woman, Jennelyn Kennedy, who died after being held captive, tortured and assaulted by her partner in their bedroom over 4 days in Port Moresby. An ABC Pacific Beat article dated 3 July 2020 reports on a peaceful march and vigil held in honour of Jenelyn Kennedy, coordinated by ‘PNG Man Up’ led by men and attended by the Prime Minister James Marape and several senior ministers including the Police Minister, as being a turning point in PNG’s dealing with the long standing issue of domestic violence. She referred to these articles as examples of the prevalent violence against women in PNG but did not claim she experienced domestic violence or she feared harm in PNG for that reason.
In her statutory declaration of 28 July 2022, the applicant claimed that there has been escalating violence nationwide in Papua New Guinea, particularly in Port Moresby and many areas of the Highlands region including her hometown of [Town 1], in relation to the National General Elections of 2022. She claimed that a family friend who is a female [occupations deleted] was followed and forced to pull over her car off the road by 3-4 men in police uniform [in] July 2022, who punched the glass of her passenger side door when she refused to unlock the door. The friend sped off in fear for her safety to an undisclosed location and she believed she was targeted because her [specified] car could not have been followed unless the men already knew her car and who she was. The applicant claimed that she and her daughter are terrified to return to PNG where the government is unable to protect women and children and such country-wide violence is not limited to election-related issues.
In her statutory declaration of 20 April 2024, the applicant provided further accounts of recent violence and concerns in PNG as follows:
·In April 2024, her friend [Friend A] was stabbed in a carpark of a busy [shopping area] located next to [a police] office in [Town 1]. [Friend A] claims that when she was waiting in the hospital queue to get treated, other young ladies with similar injuries were waiting to receive treatment.
·The applicant’s [Stepchild F] moved to Port Moresby after her father (the applicant’s husband) passed away in May 2021 and the applicant’s [other] step-children also left [Town 1] soon after as they had enough of the violence in the area including a fight between male students in rival high schools where [students] were shot dead by the police and being subjected to violence at the hands of their own extended family members.
·[Stepchild F] who is now [age] years old recently moved back to [Town 1] after being beaten up by a family member in Port Moresby. [In] April 2024, a man tried to stab her on her way home from work so she quit her job which expected her to work late hours every day. The applicant’s stepson [Stepchild C] works in [Country 1] for 9+ months every year so he is not always around to protect her daughters. The applicant’s [elderly] mother has not left her compound in the [farm 1] for over 3 years.
·Her cousin from [Town 1], [named], informed the applicant in December 2023 that every village in the applicant’s tribal areas are now armed with high-powered weapons to protect themselves. The legal case over her father’s estate has not yet been resolved. The grandsons of the original landowners of the [farm] land are continuing to express their intention to take over the land once the caretaker placed by her brother [Brother A] retires or passes away. [Brother A] still lives in Port Moresby and only visits the [farm] now and then. Once the applicant’s mother passes away, the [farm] land ownership issues will become even more challenging.
In support of the above, the applicant provided further material including the following:
·Statement of [Friend A] dated 28 September 2024 with photographs purporting to be of her stab wound and screenshots of messages purporting to be a conversation between [Friend A] and her doctor. [Friend A] claims that she was stabbed in April 2024 [by a bush knife] in front of the [shopping area] in [Town 1] and the bystanders just stood and stared, not helping her. She further claims that when she reported to the police, a drunken cop verbally assaulted her; she took a cab to the emergency at [the local] Hospital where the staff who knew her attended quickly enough because everything in PNG operates through whom you know; she was also robbed in her own house; and criminals occupy almost all of [Town 1] ready to take anything they want from everyone. The applicant purports that the screenshots support her claim that [Friend A] and the applicant’s daughters in PNG attempted but were unable to obtain the medical report regarding [Friend A’s] injury.
·In her submission, the applicant claims that [Stepchild F] is not willing to make a statement about the attack from the family member in Port Moresby because she did not report it to the police and it involved a very close female family member who continues to live with [Stepchild F’s] grandfather and aunt. [Stepchild F] has forgiven the family member and let it go this time. After the attack, [Stepchild F] returned to [Town 1] and lives with the applicant’s mother.
·Statutory declaration of [Stepchild A] dated 11 September 2024, which claims among other things that [their] aunt’s family continue to cause trouble and fights in [the] extended family since [Husband A] passed away, including an incident on 26 June 2021 when [a] cousin tried to [attack] with a bush knife. [Stepchild A] claims that [they] cannot leave [their] father’s house in [Village 2], which was given to [Stepchild C] who does seasonal work in [Country 1]. [Stepchild A] claims that it is not safe for [their family] to be living there since [Husband A] passed away, [their siblings] are not there, [some siblings] moved to Port Moresby and [other relatives] are old and have problems with their land in the village.
·Statutory declaration of [the daughter] of the applicant’s [Relative A], dated 6 September 2024 provides further details about the issues involving the applicant’s husband’s extended family. [This daughter] claims among other things that her father is still in and out of court over his land dispute and her [other relative] has attacked the applicant’s stepchildren after the applicant’s husband died, causing most of the children to relocate to other provinces.
·Statutory declaration of [Sister A], the applicant’s sister in Australia, dated 20 September 2024, refers to a number of recent violent incidents in [Town 1]. [Sister A] claims that during her family visit to [Town 1] between 26 August to 12 September 2024, staying in the family [farm 1] compound, there were ongoing night patrol by male residents and the property manager due to constant power outages, lack of security, reports of theft and violence; 2 murders ([in] August 2024); a kidnapping of a [foreign] worker ([in] September 2024); rape of a young local woman in the [farm 1] (2 September 2024); and a police raid of the [farm 1] to capture drug addicts hiding [there] where shots were fired ([in] September 2024). She claims that these are regular occurrences highlighting the ongoing daily challenges experienced by women, children and men in the area.
·A copy of a letter dated 16 February 2024 from the applicant’s brother ([Brother A’s]) lawyers to the [Official A] and [Official B], setting out the ongoing legal dispute in the administration of the applicant’s father’s estate since his death [in] October 2010.
·In her submission, the applicant claimed that she saw a psychologist when her husband passed away because she could not return to PNG when he was unwell and for his burial. She has not otherwise seen any psychologist for her PTSD and has been managing it on her own whenever it is triggered. She claimed that the triggers included any loud sound that reminds her of gun shots or seeing armed police officers but knowing that there is no tribal violence or daily violent criminal activity where she currently lives and works helps to calm her. She only takes [medication] to control her [medical condition] which began when she was living in [Town 1].
The representative in his submissions of 11 October 2024 submitted that the applicant belongs to a particular social group of ‘widowed women in fear of returning to PNG’ and that she fears significant harm in the form of degrading treatment or punishment from gangs and ‘Raskols’ (a generic Pidgin term for a criminal or group of criminals in PNG). He provided extracts of country information about the general prevalence of violence in PNG, particularly against women and the lack of resources in addressing these issues and assisting victims. He also included a news article of 25 July 2024 reporting on tribal violence in East Sepik where 26 people including 16 children were killed across 3 remote villages in PNG’s north, but did not explain how these were relevant to the applicant’s claims given she has never claimed to have lived or has any family in East Sepik.
The submissions also included the applicant’s claims that there is no safe city or town in PNG for her and her daughter because either they have no male relatives there to help keep them safe or where there are male relatives, the relatives are focused on protecting their own wives or daughters. The applicant claimed that women in PNG must pay either money or in kind to males, even relatives, to escort them when they move around in urban areas. She also claimed that Port Moresby is not safe, referring to her [sibling’s] recent experience of being held up by criminals while she was walking in her own street and was robbed of her bag and phone. She claimed that handing belongings over to get away in safety are daily experiences for women in PNG.
Evidence at the hearing on 21 October 2024
The applicant expanded on her evidence at the hearing, including the following:
·Her mother has lived in the family [farm] compound from around 1994/1995, managing the [specified operations] until around 3-4 years ago when she developed [an illness] and [another] manager took over. She is currently mainly looked after by the applicant’s [Stepchild F] and financially supported by the applicant and her Australian permanent resident sister [Sister A] in Sydney. Her sister visits [Town 1] annually to check on their mother. The applicant’s brother [Brother A] lives with his family in Port Moresby and doesn’t help much. He visits [Town 1] twice a year for 1-2 nights only. Her mother does not have any control over her residence in the [farm] because her father had the land’s legal title and the estate administration is being disputed by the applicant’s stepsiblings and the customary owners. She is able to continue to live there for now because she is an elderly lady who is housebound and mostly ignored by others in the [farm]. The land dispute will become more complicated when her mother passes away.
·The applicant cannot return to her tribal territory because when she married, she lost all land rights and has been disrespected as a woman there. She was once asked by her [brother] to obtain some information about the [crop] production from the manager but the manager refused to give any information to her because she was a woman, even though she was requesting the information on her brother’s behalf. Given there is no male family member at the [farm], including her [brother] who has not made any concrete plans to return there with ongoing land dispute with stepsiblings, there is no one to protect her there if she returns.
·[Stepchild F] is completing her [studies] in [Town 1], living with and taking care of the applicant’s mother. [Stepchild F’s] study was disrupted by displacements. When she lived with relatives in Port Moresby, she assisted her aunt’s [business]. After she returned to [Town 1], she worked for a few days at a [store], but she was almost stabbed on her way home after finishing at work late and she quit the job.
·[Stepchild A], lives with [their child] in the applicant’s husband’s home in [Village 2]. They moved there after the applicant’s husband died because they didn’t have anywhere else to live. The house has been passed to [Stepchild C] but he spends most of the year working in [Country 1] and when he returns to Papua New Guinea, he usually stays in Port Moresby and with friends. He doesn’t like to stay in the [Town 1] village home because he doesn’t want to deal with anything, he drinks a fair bit with friends and he’s never around. [Stepchild A] has no choice but to live there because the minute [they] the house, an aunt will take over. They do not have any money to pay someone else to manage or protect the house. [Another relative] sometimes visits and lives in the house, but he has his own family and home in another village.
·The applicant cannot return to the [Village 2] house because it has been given to [Stepchild C] and his birth mother has the rights to that house.
·[Stepchild B] is married and moved to [a relative’s] village in [a named town], East New Britain after the applicant’s husband passed away. The applicant and [Stepchild B] only speak once around 6 months. They are not very close and [Stepchild B] would not look after the applicant as [she is not their] own birth mother.
·[Stepchild D] and [Stepchild E] live with [Applicant 2’s] maternal relatives in Port Moresby. [Stepchild D] is recently separated and [Stepchild E’s] partner is still studying. They each have young children and the applicant rarely speaks with either of them because she can’t help them financially.
·She cannot return to Port Moresby for her brother’s protection because she can’t trust him to look after her as he can’t even protect his own daughters. She would have to live in another part of PNG, not any of the urban centres where women are attacked all the time and the applicant would not cope with the constant triggers such as gunshots and police chasing people.
·When she was working as a manager at the [Employer 1] in PNG, she would have to give cash or buy lunch to male staff to escort her to town for business meetings. Although it was part of their job, she would still have to give them something extra to accompany her so that she would feel safer.
·In PNG, she had frequent panic attacks at work and while driving when she saw riots and smashing of buildings. She would be paralysed if she was triggered for some reason and she would not be able to talk and have [specified symptoms]. Her staff would have to hold her hand and take her to her house because she couldn’t move. Worst trigger was in 2016 when her son caused an accident while drunk and armed men related to the deceased cousin came to the hospital and her mind just plummeted after having seen so much violence. She thought she could handle living in PNG just like everyone else, but her health deteriorated and she didn’t know what was making her sick.
·Soon after arriving in Sydney, she was triggered by a backfiring car which sounded like a gun and she broke down. That’s when she realised she needed help and started seeing a counsellor. She didn’t consistently continue with counselling because she was tired of talking about her experiences which was revisiting the trauma and she thought she could manage it herself as she was not in PNG. She has had other episodes such as during an evacuation drill exercise at her work in childcare where taking children to safety reminded her of her own experience of escaping with her children in PNG. At such times, she would stop and repeat to herself that she is not in PNG, there are no targets and she is safe. She keeps [medication] in her bag to calm her [symptoms]. She has not continued professional help because she is also conscious of costs. However, she had a few sessions when her husband passed away because she was not in a good headspace and a session last week to manage her stress of coming to the Tribunal.
Applicant 2 also gave oral evidence at the hearing. She corroborated the applicant’s account of frequent panic attacks in PNG including that the applicant would shut down and have [specified symptoms] to the point she couldn’t function. She explained that around the time they travelled to Australia, the applicant was really sick, having anxiety attacks every night. She stated that her biological mother left her when she was only 5-6 years old and she does not have a stable good relationship with her, and she speculated that the applicant saw that when she joined the family and took to her more than the other children, which led to her accompanying the applicant to Australia. She is currently a full-time student at a university and only works odd shifts at [a shop] to cover her transport expenses. She lives with the applicant and is financially dependent on the applicant. The applicant also cares for her with all of the usual mother stuff.
In relation to the protection visa application, Applicant 2 confirmed that the applicant included her as a dependant, and they had not discussed the claims prior to applying. She was still very young at the time and only knew that the applicant had applied for them to remain in Australia. Applicant 2 started seeing a therapist and realised she had been bottling up so many things that had happened to her in PNG. Her individual fear of returning to PNG also developed when her father passed away in 2021 because she realised there is no protection for her if she returns. With little prompting, she recounted personal experiences as a girl in PNG which she stated that knowing what she knows now were not appropriate, normal or safe. She stated that it only occurred to her to mention these experiences to the representative on the morning of the hearing while preparing and she had not spoken in detail about these experiences with the applicant because it would make her anxious.
After the hearing, the applicants provided the contact details and availabilities of her family members who have provided supporting statements. The applicants’ detailed evidence at the hearing are discussed below where relevant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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-5LA, which are extracted in the attachment to this decision.
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
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicants meet the criteria for protection visas under s 36(2) of the Act. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Receiving country
The applicants claim that they are citizens of Papua New Guinea and that they do not have rights to enter and reside in any other countries. Based on the copies of various Papua New Guinean identity documents provided by the applicants and their straightforward evidence regarding their background set out above, I accept that the applicants are citizens of Papua New Guinea and that Papua New Guinea is the receiving country for the purpose of assessing their claims.
Assessment of claims and findings
In assessing the applicants’ claims, I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility. If the Tribunal is unable to make a confident finding that an applicant’s account is credible, it must assess the claim on the basis that it is possible, although not certain, that the applicant’s account is true.[1] However, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant. Further, the Tribunal does not need rebutting evidence before it can find that a particular factual assertion by an applicant is not made out.[2]
[1] MIEA v Guo (1997) 191 CLR 559; Rajasundaram v MIMA (1999) 51 ALD 682; MIMA v Rajalingam (1999) 93 FCR 220.
[2] Selvadurai v MIEA (1994) 34 ALD 347 at 348.
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear, or that it is for the reason claimed, or that it is well-founded. It remains for the applicant to provide the relevant information in their case in as much detail as is necessary to enable the Tribunal to establish the relevant facts and be satisfied that all of the statutory elements for well-founded fear of persecution or complementary protection are made out.[3] It is the applicant’s responsibility to specify all particulars of their claim to be owed protection and to provide sufficient evidence to establish the claim, and the Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.
[3] MIEA v Guo (1997) 191 CLR 559; Nagalingam v MILGEA (1992) 38 FCR 91; Prasad v MIEA (1985) 6 FCR 155.
Although not expressly raised by the applicants, I have considered their lack of familiarity with the Tribunal process, the passage of time since the claimed experiences and the lodgement of the application and the impact of past traumatic experiences and vulnerability in recalling those events. Having regard to these considerations, I found both applicants to be overall reliable witnesses who sincerely gave evidence to the best of their ability and knowledge without embellishments at the hearing.
The applicant gave broadly consistent evidence regarding her family details and their circumstances. I accept her evidence regarding her background as set out at [6]-[10] above. Although I found the extrinsic material including some of the news articles, general country information and the representative’s submissions to be not directly on point, I found the applicant’s own evidence, particularly her spontaneous and detailed oral evidence at the hearing, to be highly relevant to understanding her specific personal circumstances and fear on return to Papua New Guinea.
Having regard to the applicant’s frank and detailed evidence and the relevant country information, I find the following claims to be credible:
a)She felt unsafe as a single woman in [Town 1], Lae and Port Moresby walking and travelling on public transport to and from work. She was robbed twice on the bus in Port Moresby by armed robbers and an armed intruder invaded and shot at the ladies’ hostel where she was living. Country information indicates that violent and petty crime, as well as robbery, assault, sexual assault, gang rape and property crimes, are common in PNG, especially in Port Moresby, Lae and other urban centres; ‘bush knives’ (machetes) and guns are often used in assaults and robberies; and women face a much greater risk of sexual assault and robbery and police response is usually inadequate.[4]
b)She witnessed violent riots in her husband’s village in [Village 2], [Town 1] in January 2010, which caused her and her stepchildren to flee to other areas. She also witnessed frequent violence in [Village 2], relating to the land dispute between her [Relative A] and other tribal men, causing her to flee quickly to other areas, although she nor her children were harmed or targeted in relation to the land dispute. In this regard, country information indicates that tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, particularly prevalent in the Highlands region and may be triggered for a variety of reasons including land and territory-related issues, souring of relationships or a misunderstanding after an altercation, leading to outbreaks of fighting, rioting and looting, often resulting in destruction of property, serious injury and deaths, as well as displacement of mostly women and children.[5]
c)She witnessed violence in [Town 1] even as a married woman including the murder of [a Country 3] man in her employer’s apartment in April 2013 and a threat to her employer’s business to pay a donation in May 2016.
d)These experiences of violence have caused her physical and mental health to deteriorate, and she sought treatment from 2013 for anxiety, panic attacks, chest pains and [a physical condition] in PNG and [Country 2]. She also had remote counselling with an Australian counsellor while she was still living in PNG in October 2016, and in Australia, she saw a psychologist between October 2018 and March 2019 for PTSD management.
e)Recently her friend [Friend A] and her daughter [Stepchild F] were subject to armed robbery in [Town 1], and in [Friend A’s] case, the bystanders at the public scene of the crime nor the police helped her. [Sister A] on her recent return to [Town 1] also observed that there were frequent armed police raids at the family [farm] to capture drug addicts and ongoing patrol of the area by male residents due to frequent violence, crime, power outages and security issues.
[4] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [2.26].
[5] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [2.27]-[2.32].
While the applicant only provided limited medical evidence regarding her claimed mental health concerns, I accept that she has PTSD from exposures to violence and traumatic experiences in PNG. Her accounts of severe panic attacks in PNG and Australia are corroborated by Applicant 2. I find the applicant’s reasons for not consistently continuing with counselling or professional mental health help plausible, that she was tired of repeating her traumatic experiences to medical professionals and she was conscious of costs. I also accept that being away from the environment in which she felt unsafe has helped the applicant to manage her anxiety and PTSD on her own in Australia.
As noted above, Applicant 2 also gave evidence at the hearing and I found her to be a reliable witness who gave spontaneous, considered and detailed responses. Although she raised her own new claim and provided evidence in this regard for the first time before the Tribunal, I am satisfied that she has a reasonable explanation for not raising these before the primary decision was made. I accept that she was still very young at the time the application was made by the applicant and the applicant did not discuss the details of the application with Applicant 2. I also find on the evidence that Applicant 2 has been, and is still, dependent on the applicant as a full-time student and that they did not discuss the details of the application until they both decided to give evidence at the scheduled hearing. I find Applicant 2’s reasons for the late raising of her claim plausible, that when she experienced these matters as a very young child she pushed them to the back of her mind to forget, she rarely discussed them until she started seeing a therapist in Australia, she had not disclosed them to the applicant as it would make her anxious, and it only occurred to her to discuss them in preparing for the hearing. Therefore, I have not drawn an unfavourable inference to the credibility of the claim and her evidence. In any event, it was clear from the unprompted specific details she provided that she was speaking of her own personal experiences.
Applicant 2 submitted that she does not want the applicant to know the full details of her experiences for fear of aggravating the applicant’s mental health. Given this and in light of my findings below, I do not consider it necessary to detail her evidence in this decision record. In summary, she spoke of various instances of violence she experienced in Papua New Guinea as a girl in private and public settings. Her account is consistent with the country information that gender-based violence (GBV) against women and girls in Papua New Guinea is endemic, with the country having some of the highest rates of such violence in the world and almost all women and girls in Papua New Guinea being subjected to sexual and physical violence at some point during their lives, and women living in the Highlands provinces at particular risk of such violence.[6] Various independent and reliable sources of country information[7] report that high rates of GBV against women and girls in Papua New Guinea are underpinned by social and cultural factors, including that Papua New Guinean society is based on patriarchal organisation with men as the ultimate authority in both the public and private domains, and such traditional values and gender roles within the community, home and institutional settings often lead to women being regularly subjected to physical and sexual violence with little or no consequence for perpetrators.
[6] 'Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024, at pp.474, 489; DFAT Country Information Report – Papua New Guinea, 6 September 2022, [3.18]-[3.19]; '2023 Country Reports on Human Rights Practices - Papua New Guinea', US Department of State, 22 April 2024, at p.17; 'Addressing Gendered Violence in Papua New Guinea: Opportunities and Options', United States Institute of Peace, 7 March 2024, at p.3.
[7] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [3.19]-[3.22]; ‘Addressing Gendered Violence in Papua New Guinea: Opportunities and Options', United States Institute of Peace, 7 March 2024, at p.14; ‘Special Rapporteur on Violence against Women finalises country mission in Papua New Guinea’, Office of the High Commission, UN Human Rights Office, 26 March 2012; ‘Amnesty International Report 2020 – Papua New Guinea’, Amnesty International.
I accept that Applicant 2 experienced GBV as a young girl in PNG. I accept her evidence that due to her naivety as a child and the common occurrences of GBV within the community and her social circles, she did not understand their seriousness or abnormality until she became an adult, having lived in Australia and becoming aware of the perverted nature of the behaviours she was subjected to in PNG. I also accept her frank evidence that she did not have fear while her father was alive as she believed he would protect her, as he had done in the past when she lived with him, but since his death she does not feel safe returning to PNG or staying with anyone back home.
Having regard to the applicants’ evidence, I find that the applicants would be returning to PNG as single women. The applicant is widowed and Applicant 2 is a young single woman. I find that they no longer have the protection of [Husband A] on return as he has passed away.
I find based on the evidence that if the applicants were to return to PNG, they will likely return to the applicant’s family [farm] in [Village 1], [Town 1] where the applicant’s mother lives with [Stepchild F]. Despite the applicant’s claim that she does not have any rights to live there, I note that her stepdaughter who does not have any rights or connection to the land or the tribes of that area lives there to care for the applicant’s mother and the applicant’s sister stays there when she visits her mother annually. Given this and the applicant’s own evidence about her regular contacts with and concerns about her mother, I find that if the applicants were to return to PNG now or in the reasonably foreseeable future, they will likely return to be with the applicant’s mother.
I find that the applicants will not return to [Village 2] given the applicant’s previous traumatic experiences living there and their limited connection to the village since the death of [Husband A]. I accept the applicant’s evidence that [Stepchild A] is living in the village home to safeguard it for [Stepchild C] who is mostly away, but the applicant has no right to live there. Similarly, I accept the applicants’ evidence that they will not live with or near [Stepchild B] in East New Britain because they are not close, [as she is not the] birth mother and [they have no reciprocal care]. I accept the applicants’ evidence that [Stepchild C] is always away either working in [Country 1] or with his friends and hasn’t even returned to the village home, which now belongs to him, to [assist Stepchild A]. Accordingly, I accept the applicants’ evidence that neither [Stepchild C] nor [Stepchild B] can or will provide protection to them if they return to PNG. Having regard to the applicants’ detailed evidence regarding their complex family relationships, I accept their evidence that in the absence of [Husband A] (the applicant’s husband and Applicant 2’s father) there is no male relative from whom they can rely on for support or protection in PNG.
Do the applicants satisfy the refugee criterion for protection?
On the basis of the evidence and the country information discussed above, I find that as single women in [Town 1], there is a real chance that the applicants will face harm in the form of gender-based violence and harassment including sexual, physical and verbal assault. The country information noted above highlights the serious violence against women, particularly those in the Highlands area where the applicants will likely return to, and the applicants’ evidence regarding their female family members and friends in [Town 1] who continuously experience attacks and robberies resulting in physical injuries illustrate the significant physical harassment and ill-treatment faced by single women.
Although there is limited independent information about specific targeting of mixed-race or fairer-skinned women, I consider it plausible that the applicants, both being noticeably fairer-skinned than other Papua New Guineans, will likely stand out, particularly in rural areas, and I accept their evidence that men have made inappropriate, often sexual, comments about their appearances in PNG. I find these harassments or other types of violence will have a significant impact on the applicant given her fragile mental health. I am satisfied on the material before me that the harm faced by the applicants on return to PNG constitute serious harm.
Having regard to the applicants’ evidence about their particular circumstances, I am not satisfied that the applicants have any meaningful male protection from their family members, relatives or [farm] residents if they were to return to [Town 1] as single women. The applicant’s brother [Brother A] lives in Port Moresby and only visits his mother twice a year only for up to two days. I accept the applicant’s evidence that the [farm] manager previously disrespected and undermined her, which is consistent with the country information that women experience official and societal discrimination on the basis of their gender due to long-standing traditional patriarchal values and gender roles that restrict their ability to fully participate in the community.[8] I have also accepted above that the applicant’s stepsons will not provide support or protection to the applicants and that there are no other male relatives who the applicants can rely on to provide support or protection.
[8] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [3.19].
Country information indicates that women are traditionally dependent on a male partner or guardian for their economic and physical security and Papua New Guineans typically rely on family and tribal networks for support.[9] Given this and in light of my findings above, I find that there is a real chance that the applicants would face serious harm in the reasonably foreseeable future as single women without male protection if they were to return to [Town 1].
[9] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [5.16]; ‘Gender equality strategy 2023 – 2025’, United Nations Development Program, at p.8.
I find that the applicants’ fear of persecution is for the reason of their membership of a particular social group, being single women without male protection in Papua New Guinea. I find that members of this group, including the applicants, share the characteristic of their gender and relationship status which is an innate or immutable characteristic that also distinguishes the group from society and is not a fear of persecution. I am satisfied that the applicants’ membership of this particular social group would be the essential and significant reason for the persecution and that the persecution involves systematic and discriminatory conduct as it would be targeted toward the members of the group that is deliberate, rather than random or accidental, behaviour.[10]
[10] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [99]-[100] per McHugh J; SZTEQ v MIBP (2015) 229 FCR 497 at [72].
In considering whether the real chance of harm related to all areas of Papua New Guinea, I note that country information indicates internal relocation within PNG occurs regularly as people can and do migrate to cities, either in search of economic opportunities or to escape tribal and other violence.[11] DFAT reports that while as much as 50% of Port Moresby’s population is comprised of internal migrants residing in informal settlements, those who relocate to Port Moresby and other major cities face very high unemployment and very high levels of crime, and some people, especially single women, struggle due to lack of family and tribal network and support, higher risk of sexual assault and robbery, and cultural norms posing significant barriers to women’s equal participation in economic activities.[12] Gender discrimination exists at all levels in Papua New Guinea and women face discrimination in the workplace, as well as being precluded from certain occupations such as civil services, and in relation to property rights and inheritance.[13]
[11] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [5.15].
[12] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [5.15]-[5.16], [2.26], [2.9].
[13] '2023 Country Reports on Human Rights Practices - Papua New Guinea', US Department of State, 22 April 2024, pp.19-20; DFAT Country Information Report – Papua New Guinea, 6 September 2022, [3.17]; 'Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024, pp.488-489; 'Freedom in the World 2023 - Papua New Guinea', Freedom House.
I note that the applicants have relatives in Port Moresby, including the applicant’s brother [Brother A]. However, I find that based the applicants’ evidence regarding their family circumstances detailed above, they cannot obtain adequate support from their extended family in Port Moresby including the applicant’s brother [Brother A], stepdaughters [Stepchild D] and [Stepchild E], who all have their own families and in [Stepchild D] and [Stepchild E’s] case, are relying on other family members financially. I also consider that even with the extensive employment experiences and education both applicants have acquired in PNG and Australia, the country information indicates that as single women they will face difficulties in finding employment and accommodation in Port Moresby. Importantly, considering the country information and the evidence before me, I am not satisfied that [Brother A] or any other relatives will provide the applicants with protection from gender-based violence as single women in Port Moresby. I also find on the evidence that the applicants do not have male protection in other areas of PNG. Therefore, I find that the real chance of harm faced by the applicants as single women without male protection in PNG relates to all areas of PNG.
Further, having regard to the following country information, I find that effective protection measures are not available to the applicants. DFAT reports that the Royal Papua New Guinean Constabulary (RPNGC)’s capacity, effectiveness and ability to respond to crimes are typically severely limited due to lack of resources and staffing constraints, but its response to GBV is especially lacking and women who are subjected to GBV are unlikely to be able to avail themselves of adequate state protection or support services.[14] Family and sexual violence 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; and police are more likely to act on complaints about perpetrators outside the family, if they act at all.[15] Although the RPNGC has established Family and Sexual Violence Units (FSVU) in every province, there are not enough FSVUs and officers and the same resource constraints limit adequate response to the scale of the problem.[16] In this regard, I note the applicant’s evidence that she even had to pay the police officers for fuel and assistance on a number of occasions for them to attend the scene of crime or accident, which illustrate the lack of effective protection measures the applicant personally experienced in PNG.
[14] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [5.5]-[5.6], [3.19], [3.21].
[15] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [3.22].
[16] Ibid.
I find that the applicants could not take reasonable steps to modify their behaviour to avoid a real chance of persecution because to do so would require them to conceal an innate or immutable characteristic, being their gender.
For the above reasons, I find the applicants have a well-founded fear of persecution in Papua New Guinea and are refugees within the meaning of s 5H(1) of the Act. There is no evidence to suggest the applicants have a right to enter and reside in any other country and I am satisfied that s 36(3) of the Act does not apply.
Accordingly, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the order that the applicants meet s 36(2)(a) of the Migration Act.
Date(s) of hearing: 21 October 2024
Representative for the Applicant: Mr John Young (MARN: 9251554)
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.
…
0
10
0