2009630 (Refugee)

[2021] AATA 5128

2009630 (Refugee) [2021] AATA 5128 (29 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009630

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Brendan Darcy

DATE:29 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 29 September 2021 at 9:07am

CATCHWORDS

REFUGEE – Protection Visa – Papua New Guinea – applicant is subject to sexual abuse – race – Western Highlander ethnicity – frequent sexual and physical violence from husband – domestic violence – membership of a particular social group – women in Papua New Guinea – forced marriage and bride price –State protection not available –– decision under review remitted  

LEGISLATION

Migration Amendment (Complementary Protection) Act 2011

Migration Act 1958, ss 36, 65, 91, 424AA, 499

Migration Regulations 1994, Schedule 2
Tribunals Amalgamation Act 2015 (Cth), Schedule 9

CASES

MIBP v SZVCH (2016) 244 FCR 366
SZGIZ v MIAC (2013) 212 FCR 235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant claims to be a citizen of the Independent State of Papua New Guinea/Stet bilong Papua Niugini (Papua New Guinea or PNG).

3. Prior to the visa application that is the subject of the present review the applicant lodged an application for a protection visa on 8 November 2010 that was determined to be invalid.[1]

   [1] APE16 v Minister for Immigration and Border Protection [2020] FCAFC 93 (APE16 v MIBP) [3].

4. On 22 March 2011, the applicant lodged a further application for a protection visa (2011 protection visa application) with her then husband, Mr [Mr A]). The application was made on the basis of claims advanced by the applicant, [Mr A] did not advance claims of his own.[2] A delegate of the Minister refused to grant the visa on 9 June 2011. The applicant applied to the then Refugee Review Tribunal (RRT), differently constituted, for review of that decision. On 31 October 2011, the RRT affirmed the decision.[3]

   [2] RRT [case number deleted] Decision Record [23].

   [3] RRT [case number deleted] Decision Record [92].

5. From 24 March 2012, a new alternate criteria for the grant of protection visas was introduced by the Migration Amendment (Complementary Protection) Act 2011, so that a person may meet the criteria for a protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country there is a real risk that she or he will suffer significant harm.

6. On 5 August 2013 the applicant applied for a further protection visa (the current application under review), pursuant to the Full Court of the Federal Court of Australia (FCAFC) decision in SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ). A delegate for the Minister refused to grant the visa on 25 June 2014.

7. On 10 July 2014, the applicant lodged an application for review with the then RRT, differently constituted. The application for review was taken to be a proceeding before the Administrative Appeals Tribunal Migration and Refugee Division (the Tribunal) on 1 July 2015 pursuant to the Tribunals Amalgamation Act 2015 (Cth) schedule 9, item 15AB(2). The application was constituted to a new Member on this date (previous Tribunal).[4] On 13 November 2015 the previous Tribunal affirmed the delegate’s decision not to grant the visa.[5]

   [4] APE16 v MIBP [10].

   [5] [Case number deleted] Decision Record 1.

8. On [date] March 2016, the applicant commenced proceedings in the Federal Circuit Court of Australia (FCCA) seeking judicial review of the decision made by the previous Tribunal. On [date] August 2018 the FCCA entered judgment making orders dismissing the application.[6]

   [6] APE16 v Minister for Immigration and Border Protection [2018] FCCA 2094.

9. On [date] September 2018 the applicant lodged a further appeal of the FCCA decision. On [date] May 2020 the FCAFC entered judgment making orders allowing the appeal, and among other orders, remitted the matter to the Tribunal to determine the application for review according to law.[7] The judgment determined that the Tribunal erred by failing to make a finding as to the place where the appellant was likely to return – consideration of the concept of a “home area” and the internal relocation principle in applying s 36(2B)(a) of the Act.

   [7] APE16 v MIBP.

10. The Tribunal reopened the case on 5 June 2020 in accordance with the FCAFC orders. The present Tribunal has been differently constituted from the previous Tribunal.

11. Via an internet-enabled audio-visual platform, the applicant appeared before the present Tribunal on 27 September 2021 to give evidence and present arguments. No witnesses attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tok Pisin (Pidgin PNG) and English languages

12. The applicant was represented in relation to the review by a legal [practitioner].

    RELEVANT LAW

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

    Refugee criterion

14. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. In SZGIZ, the Full Federal Court held at [38] that the operation of s 48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. Where an applicant has already been assessed against the refugee criterion, neither the delegate nor the Tribunal has any jurisdiction to consider a further application made on the basis of the complementary protection criterion against the refugee criterion: MIBP v SZVCH (2016) 244 FCR 366 at [44], [97]. In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s 36(2)(aa).

    Complementary protection criterion

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

16. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

18. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicant faces a real risk of significant harm at the hands of her former intimate partner, his family and/or under the threat of a forced marriage by family members if she is returned to Papua New Guinea.

20. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

21. The applicant was born in [City 1], Western Highlands PNG on [date]. The applicant stated she is of Western Highlander ethnicity and the Assembly of God denomination of Christian faith. She is able to speak, read and write English and Pidgin-English (Tok Pisin). She completed primary schooling and secondary schooling to [a specified grade] in Papua New Guinea. She had lived in [Village 1] Village to year 2000, and then resided in Port Moresby from 2001 to her arrival in Australia in 2009.

22. In the present visa application, she states she had been married to [Mr A] in 2008, though he was not included in the application as she believes [Mr A] had left her for good. In a Form 80 lodged on the same day she states she does not know the whereabouts of [Mr A] and she is estranged from him.

23. In her application the applicant states her father was deceased, her mother and brother(s) remained in Western Highlands province PNG.

24. A copy of the applicant’s PNG passport on file was issued [in] 2009 and expired [2014].[8] It indicated the applicant is of Papua New Guinean nationality.

    [8] [file number deleted] folio 30.

25. On 27 March 2009, the applicant was granted a Class TR Subclass 676 Tourist visa (Tourist Visa) and arrived in Australia with her then husband [Mr A] on [date] March 2009. Neither the applicant nor her husband had departed Australia at the time their tourist visas expired [in] June 2009 after which time they became unlawful non-citizens in Australia.

26. On 22 March 2011, the applicant and [Mr A] lodged an application for Class XA Subclass 866 visas. On the same day the applicant was granted a bridging visa, thus becoming a lawful non-citizen. The applicant has remained onshore lawfully since.

27. The procedural history of the applicant’s 2011 protection visa application and the present application are noted above.

    2011 protection visa claims

28. The applicant and [Mr A] were not assisted by a Migration Agent or legal representative in the initial 2011 protection visa application.

29. The claims that the applicants were owed Australia’s protection obligations in 2011 can be summarised as follows:[9]

    [9] RRT[case number deleted] Decision Record 4–5.

    ·The claimants fear returning to PNG because the applicant is subject to sexual abuse and her husband was almost killed on a “few occasions” in [City 1] and Port Moresby.  She was verbally and sexually abused by other men from other tribes and threatened to be killed if she told the police. 

    ·The applicant’s tribe, the [Tribe 1], staged war against other tribes and women and children suffered as a result, with rape and killings common.  Even though the couple moved to Port Moresby the other tribes hunted them down and they lived in fear.  The primary applicant claims that she was raped by men from the [Tribe 2] tribe.  The [Tribe 2] tribe had a war against the [Tribe 3] tribe and the [Tribe 2] Tribe destroyed the land of the [Tribe 3] tribe.  The [Tribe 1] gave refuge to the [Tribe 3] tribe and this resulted in them being targeted by the [Tribe 2] tribe.

    ·The applicant fears for her life because of tribal wars, witchcraft and rape of women which is so common in PNG. 

    ·Even in Port Moresby the [Tribe 2] tribe would pick up 10–20 girls or women and take them away to be sexually assaulted, tortured and beaten. 

    ·The claimants did not lodge an application earlier for fear of going back. 

    ·The applicant was diagnosed with “mental disorder” after seeking medical treatment while in Port Moresby, six months after the rape took place in 2001.  Following the rape and other attempts, the applicant was depressed, angry, fearful and anxious.

    ·The police and authorities in PNG cannot be trusted because the whole system is corrupt.  They tried to “relay our stories to the police on patrol” but the police verbally abused them and told them not to report it or they would be raped again by the police.

    ·It is not safe to walk to streets of any city or tell anyone which tribe you belong to.

    ·The applicant believes what happened in the past will happen again if she returns to Papua New Guinea because of “our ethnicity and race”.

30. The claimants were interviewed by a departmental official on 7 June 2011. At the interview the applicants gave answers that were inconsistent with the claims made in the application, largely concerning the dates of certain events with what was stated in her protection visa application.[10] That delegate refused to grant the claimants protection visas on 9 June 2011.

    [10] RRT[case number deleted] Decision Record 6–7.

31. The then RRT invited the applicant and [Mr A] to appear at a hearing on 12 September 2011. Neither the applicant nor [Mr A] put written material expanding on their claims to the RRT prior to the hearing. The applicants were assisted by an interpreter in the PNG Pidgin and English languages.

32. The RRT took evidence from the applicant and [Mr A] separately, the applicant’s evidence as to dates and events was again inconsistent with what she stated in the application and said at the interview with the delegate. Evidence taken from [Mr A] introduced further inconsistencies.[11]

    [11] RRT[case number deleted] Decision Record 8–15.

33. On 21 September 2011, the then presiding Tribunal Member wrote to the applicant and [Mr A] pursuant to s 424A of the Act, inviting them to respond to or comment on information that the RRT considered would be the reason, or part of the reason for affirming the decision then under review. The information concerned the inconsistent evidence given by the applicant and [Mr A] before both the delegate and the RRT and fell into these broad categories:

    ·the date the applicant moved to Port Moresby;

    ·the circumstances surrounding the applicant’s rape;

    ·medical treatment sought by the applicant as a result of rape;

    ·claims submitted in the 2010 invalid protection visa application;

    ·the history of the applicant and [Mr A]’ relationship;

    ·difficulties the applicant had with the [Tribe 2] tribe in Part Moresby;

    ·difficulties [Mr A] had with the [Tribe 2] tribe while living in Port Moresby;

    ·difficulties the applicant had with the [Tribe 2] tribe in the PNG Highlands; and

    ·difficulties the applicant and [Mr A] faced at the airport when departing Australia.[12]

    [12] RRT[case number deleted] Decision Record 16.

34. The then Tribunal received a response from [Mr A] on 12 October 2011 stating:

    ·The applicant moved to Port Moresby a few months after being raped in 2001.  Her evidence to the contrary is a result of memory difficulties which result in her changing her story every time.

    ·[Mr A] did not claim to have been almost killed on a few occasions in [City 1] and any such claims are the result of a wrong statement by the person who assisted with the application.  Although some men came to his workplace in 2005 they did not assault or attack him.  If they had done so he would be dead.  The applicant was incorrect when she stated that he had no problems with the [Tribe 2] tribe in Port Moresby as she knows about his difficulties with his job.

    ·[Mr A] claimed that “due to some internal problems in [the applicant] herself [it] has caused her to say anything that clicked into her mind which she thinks is best.  Like not going to hospital or seeing doctor for medical treatments six months after the rape in 2001 and many more”.

    ·[Mr A] became aware of the rape when the applicant started having severe pain in her [body part], as a result of which she had to have an operation in 2008.

    ·The first protection visa application was completely false.  The pastor who assisted only asked about their passport details and the applicant assisted him with this.  They then signed a blank form without any story written on it because the pastor said that he would fix everything.  They believe that it was deliberately done by someone against them for an unknown reason.

    ·The couple grew up in different tribes but went to the same primary school and became girlfriend and boyfriend.  Their official marriage was organised in 2005 and the certificate was issued in 2008.  The applicant’s evidence to the contrary reflects “the kind of a situation she is in at the moment” and she has “lost track of every single event of our relationship”.

    ·The applicant’s family told [Mr A] that the applicant was alone at the time she was raped and that this occurred in 2001.The applicant herself provides contradictory responses when asked about this and therefore [Mr A] relies on the information provided by her family.

    ·Most of the [Tribe 2] tribe’s men live and stay in Port Moresby, resulting in difficulties for the applicants.  The applicant’s evidence in relation to this is “not quite right”.  They did know where she lived and they did assault and attack her, including trying to kidnap her at a bus stop.

    ·The reason they were in hiding at the airport was because the [Tribe 2] tribe are everywhere, so they were in fear.  [Mr A]’ family are not in Port Moresby so the applicant’s evidence in relation to their disapproval had nothing to do with the airport and is “a mixed kind of story”.

    ·The [Tribe 2] tribe did attempt to kill the applicant after she was raped but her family sent her to Port Moresby.  Her statements to the contrary are a “reflection of the kind of situation she is in at the moment”.

35. On 10 October 2011, the Tribunal received a letter from [Dr B], a counsellor at [ORGANISATION], stating that the primary applicant was a client at [ORGANISATION] and suffered “an extremely traumatic event in her country of origin” and that “it became untenable for her to stay there”.  The letter states that the primary applicant “reports a range of severe signs and symptoms as a result of the past trauma such as depression, suicidal thoughts, nightmares, intrusive thoughts and memories, poor concentration, social withdrawal and some physical symptoms”.  The letter states that she would require ongoing counselling and it would be of great benefit to her if she could remain in Australia to receive ongoing treatment and counselling.

1. The RRT considered the claims and evidence of the applicant and [Mr A] and affirmed the decision of the delegate on 31 October 2011.[13] (At the hearing, the applicant claimed that the applicant sought the Minister to personally intervene in her matter to grant her a visa. This request was unsuccessful.)

   [13] RRT [case number deleted] Decision Record 1, 17–25.

   Claims made in present application

2. The present visa application was made on 5 August 2013. An overview of the procedural history is set out above. 

3. The applicant (without her husband) set out her claims for protection in a statement which can be summarised as follows:[14]

   [14] CLF [Folios] 50–54.

   ·The applicant is from the [Tribe 1] tribe. She was born and raised in [City 1], PNG.

   ·A war broke out between the [Tribe 1] and [Tribe 2] tribes in 2000. The applicant was raped by members of the [Tribe 2] tribe, the assailants threatened that they would kill her if she told anyone. She later found out she is unable to have children as a result of the rape.

   ·Following the rape she moved to Port Moresby in 2001, there she was watched by men from the [Tribe 2] tribe and did not feel safe.

   ·If she returned to PNG she would continue to face threats from members of the [Tribe 2] tribe.

   ·She married [Mr A] in 2008, they lived together in Port Moresby. [Mr A] grew frustrated with the applicant as he was interrupted at his work by men from the [Tribe 2] tribe as part of threats directed at the applicant.

   ·In 2008 [Mr A] left the applicant on her own in Port Moresby despite the threats of the [Tribe 2] tribe. In 2009 the applicant and [Mr A] travelled to Australia together.

   ·The applicant’s health deteriorated during 2011 and 2012 while in Australia. This led [Mr A] to become angry and abusive toward the applicant to the point he stopped talking to her.

   ·On [date] May 2013 [Mr A] drove the applicant to hospital for a second [surgery]. When she came out of the surgery [Mr A] was not present and she has not seen him since.

   ·On [date] June 2013 the applicant received a threatening text message from [Mr A]’ Australian telephone number in Pidgin. The applicant had not spoken to or known the whereabouts of [Mr A] since that date, based on the content of the message she presumed he had returned to PNG.

   ·On this basis the applicant fears physical harm at the hands of [Mr A] or members of his family should she return to PNG, in particular to [City 1] or Port Moresby.

   ·The applicant feels the Royal Constabulary of PNG (RCPNG) will not assist or be able to protect her as they rarely involve themselves in domestic or family violence affairs.

   ·In 2011 while in Australia she was diagnosed with a [Medical condition 1]. She had surgery to treat the condition in February 2012 that was unsuccessful. She had a second surgery in May 2013 and continued to have [issues] following this.

   ·She had been diagnosed with severe mental health issues as a result of trauma experienced in PNG. She was under the care of [Dr B] of [ORGANISATION].

   ·She believed that she would not be able to access appropriate physical or mental health care should she return to PNG and this would lead to serious harm.

4. The applicant provided the following relevant documents with her application:

   ·Letters from [Dr B], Counsellor at [ORGANISATION] dated 25 June 2012 and 19 July 2013 outlining the applicant’s mental health issues. Both indicate that the preference is for the applicant to remain in Australia to receive medical and psychological treatment and care as well as ongoing support.[15]

   ·Report from [a] Health Centre, [dated] 16 June 2001. It refers to the applicant being raped by men from [Tribe 2] and being brought into the centre for a semen count. The form lists the applicant’s husband as ‘[Mr A]’. [16]

   ·Lab sheet dated 6 June 2001 indicating detection of sperm.[17]

   ·Photograph of mobile phone containing text message (as indicated in statement).[18]

   ·Discharge summary from [a clinic] dated 4 June 2013 in relation to the applicant.[19]

   ·Letter from Dr [C] dated 17 October 2012. It refers to the applicant’s [surgery] in February 2012 and indicates that she has a [condition] post surgery and this may require further surgical intervention. It indicates that the applicant needs to remain in Australia for management of her [disease].[20]

   ·Letter from Dr [C] dated 28 June 2012 in similar terms to the previous letter.[21]

   ·Letter from Dr [D], [a] Local Health Network dated 21 June 2012 indicating that the applicant presented at [the] Hospital on [date] June 2012 suffering from ongoing chest pain. Investigations revealed that her [Medical condition 1] is worse. It indicates that she has been suffering from mental health problems, especially depression for which she has been taking antidepressants.[22]

   ·Letter from Dr [E], [dated] 25 October 2012 indicating that the applicant is suffering from [illness] and back pain. It indicates that the applicant’s mental health will deteriorate if she leaves Australia.[23]

   ·Letter from Dr [F] dated 14 December 2011 indicating that the applicant requires [surgery].[24]

   [15] CLF [Folios] 24–25.

   [16] CLF [Folio] 22–23.

   [17] CLF [Folio] 21.

   [18] CLF [Folio] 20.

   [19] CLF [Folios] 14–19.

   [20] CLF [Folio] 13.

   [21] CLF [Folio] 12.

   [22] CLF [Folio] 11.

   [23] CLF [Folio] 10.

   [24] CLF [Folio] 9.

5. The applicant also provided country information in the form of media reports regarding various issues present in PNG.[25]

   [25] CLF [Folios] 1–8.

6. The applicant attended an interview before the delegate in the present application on 9 April 2014 and elaborated on her claims stating:[26]

   [26] CLF [Decision] Record 5–6.

   ·[Mr A] grew more frustrated with the applicant as she could not have children and he felt he was wasting his time with her.

   ·[Mr A] had returned to PNG and she fears he will harm her if she returns as he feels she is his property as he paid a bride price of up to the value of $A5,000 to her family.

   ·When she informed [Mr A] she required a second [surgery] he would not listen to, or stay in the same room as her, he would not respond to her and had contact with other women.

   ·[Mr A] had been violent toward her in PNG. She had never sought medical help for injuries that resulted from this.

   ·[Mr A] was never physically violent toward the applicant in Australia, though there were periods where he would not speak to her for periods up to a week and leave the house.

   ·The text message of [date] June 2013 is the only contact she has had with her husband since [May] 2013. The applicant was still in hospital recovering from surgery at the time.

   ·Prior to their separation [Mr A] had expressed a desire to return to PNG, she had told him she did not wish to return. She was unaware of [Mr A]’ whereabouts but presumed he had returned to PNG.

   ·Were she to return to PNG and live with her mother in [City 1] if [Mr A] were to cause trouble the RCPNG would not intervene on the basis of his payment of a bride price. She feels the situation would be similar if she sought assistance in Port Moresby.

   ·[Mr A] would hunt her down no matter where in PNG she was, if she were to return.

   ·[Mr A] would probably marry another woman in PNG.

   ·The applicant did not consider it possible [Mr A] would not have an interest in contacting or harming her if she returned to PNG.

   ·She also fears harm from the tribe the men who raped her belong to.

   ·She fears harm from [Mr A]’ family as they no longer want her to be his wife, they would ensure she was removed so he could remarry and have children.

   ·Her focus was her physical and mental health and she was better able to access services for this in Australia where she received Medicare and assistance from the [charity organisation].

7. The delegate refused to grant the applicant a protection visa on 25 June 2014. The applicant then validly lodged an application with the then RRT on 11 July 2014 to review the delegate’s refusal decision.

8. The applicant attended a hearing before the RRT, differently constituted for the 2011 protection visa application on 28 May 2015 conducted with the assistance of an interpreter in the Pidgin and English languages.

9. At that hearing the applicant raised a new claim, in that [Mr A] had met another woman with whom he had a child. Rather than be disinterested in the applicant, she feared that if she returned to PNG [Mr A] may still claim her as his on the basis he paid the bride price. In these situations, the two wives may fight and even kill each other. She feared this or that this may increase the risk of harm from [Mr A]’ family or that of his new partner.

10. On 1 July 2015 the matter was constituted to the previous Tribunal which conducted a further hearing on 5 November 2015 conducted with the assistance of an interpreter in the Pidgin and English languages. 

    Hearing before the previous Tribunal

11. At the hearing of the previous Tribunal it asked the applicant about the inconsistencies between the 2010 invalid visa application and evidence given at various points in the course of the 2011 protection visa application in relation to the circumstances of her rape. The applicant explained this was the result of being asked questions at three separate hearings and interviews. She was reluctant to go into some details due to the presence of her husband. When the previous Tribunal highlighted that [Mr A] was aware of the rape at the time she acknowledged this, but things were handled differently back in PNG and it may cause her husband to create difficulties.[27]

    [27] [Case number deleted] Decision Record 6

12. When asked by the previous Tribunal about the circumstances surrounding her rape and the documentary evidence produced in the present application the applicant stated she had brought these to Australia with her but did not want [Mr A] to be aware she had them. The previous Tribunal noted that the reports refers to ‘[Mr A]’ and ‘her husband’ but this was many years before they were married. The applicant initially indicated that they must have written this in, and she initially obtained the document in 2002. When the previous Tribunal asked if the applicant had the report written after she had come to Australia she answered yes. When the previous Tribunal asked her if she obtained the document for the purposes of her application she said no. The applicant went on to state that she had not had medical attention after the rape and she got the document when she applied for the visa. The applicant maintained the rape had occurred.[28]

    [28] [Case number deleted] Decision Record 7.

13. When pressed further on this matter and answers given before the RRT in this matter and in relation to the 2011 protection visa application the applicant gave answers that were not consistent with previous responses.[29]

    [29] [Case number deleted] Decision Record 7–8.

14. Pursuant to s 424AA of the Act the previous Tribunal outlined information relating to the inconsistent evidence given by the applicant and [Mr A] in relation to interactions with the [Tribe 2] tribe in Port Moresby. The applicant maintained that members of that tribe were looking around for her in Port Moresby.[30]

    [30] [Case number deleted] Decision Record 8.

15. In relation to [Mr A], the applicant maintained that she had no contact with him since [June] 2012. Pursuant to s 424AA of the Act the previous Tribunal put to the applicant information contained in a Movement Record of the Department relating to [Mr A] that did not at that time show [Mr A] as having left Australia, and this showed that he had not taken any effort to contact, threaten or harm her in the period of more than two years since the text message.[31]

    [31] [Case number deleted] Decision Record 8–9.

16. The previous Tribunal asked, in relation to the harm she feared from them, if she was aware of any contact between [Mr A]’ family and her own in PNG. The applicant responded that she has no idea as she had been in Australia. When the previous Tribunal stated she was only guessing at their response the applicant indicated this was not the case.[32]

    [32] [Case number deleted] Decision Record 9.

17. The previous Tribunal discussed the availability of evidence relating to tribal warfare between the [Tribe 1] and [Tribe 2] tribes and the unlikelihood of this spilling over into Port Moresby, suggesting that the applicant had little risk of harm to her from members of the [Tribe 2] tribe if she returned to Port Moresby. The applicant responded she would have nowhere to live there and be unable to find employment. The previous Tribunal put to the applicant that there were many jobs available for uneducated people and she would be closer to mental and physical health care in Port Moresby. The applicant responded that she would have to return to [City 1]. The Tribunal pointed out that the applicant had claimed she had previously lived with an uncle in Port Moresby, the applicant responded that he was not strictly an uncle and, in any case, no longer lives in Port Moresby.[33]

    [33] [Case number deleted] Decision Record 9–10.

18. On 13 November 2011 the previous Tribunal affirmed the delegate’s decision.

    Material before the present Tribunal

19. The procedural history of the present review before this Tribunal is noted above.

20. The applicant has been assisted in the present review by a representative who is a Legal Practitioner.

21. The applicant through her representative forwarded a statement dated 4 May 2021. Its content can be summarised as follows:

    ·The applicant restated her claim that she fears returning to PNG as she will face serious harm from her husband or his family on account of the payment of the bride price. She will not be able to mitigate this as she does not have the means to repay the bride price. There is no one who could protect her in PNG nor any place there she could live safely.

    ·The applicant is estranged from [Mr A] but remains married to him. She does not know of his whereabouts and has had no contact with him since the text message of [date] June 2013.

    ·The applicant clarified that her father died when she was [age] years of age. Her mother continues to live in [City 1], as do her brothers. Her brothers are all married and may have two or three wives each. She has a sister who was previously married with children, the marriage was abusive, and she was able to repay the bride price and return to the applicant’s family. Her sister’s children, however, remain with their father.

    ·The applicant’s family live in a very remote village without access to a telephone or the internet. She has had no contact with them since she came to Australia.

    ·The applicant has never been in formal employment.

    ·The applicant claims that at [April] 2014 she had not been truthful about whether [Mr A] had been physically violent toward her in Australia. She stated it was because at the time, and all times previously in her engagement with either the Department and the Tribunal, variously constituted, she feared [Mr A] would find out if she divulged the extent of the physical, psychological and sexual abuse she suffered at the hand of her husband both in PNG and Australia.

    ·The applicant stated that the fear she felt regarding [Mr A]’ family in PNG would extend not just to her but her extended family as they do not have the means to repay the bride price. She cites knowledge of a woman from her village who was subject to violence in similar circumstances and that she believes the RCPNG would be unlikely to intervene.

    ·The applicant restated her fear of returning to Port Moresby as the applicant would have no protection from [Mr A]’ family or members of the [Tribe 2] tribe who would find her there.

    ·In relation to the documentary evidence of her rape, the applicant states she attended the medical clinic which was three to four hours’ drive from where she lived at the time with other women from her family around three days after she was raped.

    ·After she submitted the present visa application, the applicant looked up the landline number of the clinic she attended and explained to them the document she required. The document was then posted to her, she is not sure of exactly when it was written.

    ·The applicant claims that she and [Mr A] were married in 2008 after he paid the bride price. It was only after they were married that he became aware she had been raped. This made [Mr A] angry as he felt he had paid for something that was not worthy, this only became worse when he discovered she was unable to have children.

    ·The applicant claims [Mr A] would subject her to frequent sexual and physical violence while they were in PNG and he was often drunk. He was more careful once they came to Australia as he knew it was not culturally acceptable here. She did not seek medical attention for wounds he afflicted and felt she was unable to leave him due to their joint visa application. This situation was compounded as she did not have access to legal assistance preparing those protection visa applications.

    ·She claimed her husband was controlling in terms of finances and did not permit her to work or socialise, including breaking her phone.

    ·She still has issues regarding her [medical] condition which place her at higher risk of contracting COVID-19. She had been receiving treatment for her mental health until 2020, due to lockdowns in response to the COVID-19 pandemic she has not been able to access this for some time but would return to counselling in March 2021.

22. The applicant’s representative also made legal submissions relevant to her claim on the basis of her membership of a particular social group, namely women in Papua New Guinea.

    Non-disclosure certificates

23. The Department file in connection with this application is not subject to any non-disclosure certificates.

    Country information: Papua New Guinea

    Personal status laws and women in Papua New Guinea

24. The most recent DFAT country information report on Papua New Guinea, dated 10 February 2017, states the following about the personal status laws and women in that society.

    Personal Status Laws

    3.12 Both District Courts (see ‘Judiciary’) and Village Courts (see ‘Traditional Mediation Systems and Customary Law’) have the authority to make decisions in family law matters, including in cases of family violence, family disputes over bride price or custody of the children of unmarried parents and parents married by custom. However, in many instances courts are not used or are subservient to traditional customs. Some traditional PNG customs permit parents to sell or give away their daughters for forced marriages – often to wealthy men and leaders – to settle debts or as peace offerings, leaving the women (or underage girls) vulnerable to domestic servitude. Women sold into polygamous marriages may be forced into domestic service for their husbands’ extended families.

    3.13 Along with a number of other child protection and anti-violence measures, the Child Welfare (Lukautim Pikinini) Act (2015) mandates a minimum age of 18 for marriage. However, at the time of publication, the Act was yet to be implemented.

    […][…]

    Women

    3.31Article Five of the Constitution calls for equal participation by PNG’s women citizens in all political, economic, social and religious activities. The Office for the Development of Women, which sits within the Ministry of Religion, Youth and Community Development, has responsibility for women’s issues. The National Council of Women Act (2010) mandates the National Council of Women (NCW) to promote equal participation of women in society, and to support the government to eliminate all forms of discrimination against women. In addition to the NCW, several other civil society organisations are also dedicated to improving the situation of women in PNG. A number of women hold senior positions in business, the professions, and the civil service. At the time of publication, two government departments had female Departmental Secretaries.

    3.32Despite official efforts to promote women, gender discrimination exists at all levels in PNG, and cultural barriers continue to place significant limits on the extent of female participation, including in politics (see above). In 2014, PNG ranked 158 out of 188 counties surveyed on the UNDP’s Gender Inequality Index (188 being the worst).

    3.33Levels of violent crime against women are extremely high across PNG. Domestic or family violence is particularly endemic. The precise number of women who experience violence at the hands of a partner or family member is unknown – statistics are unreliable, and there is a social stigma in PNG about reporting. Human Rights Watch (HRW) published a report on family violence in PNG in November 2015 that found that the problem continued to be pervasive throughout the country. An earlier survey, published in 2013, found that 80 per cent of men in Bougainville reported that they had perpetrated physical and/or sexual violence against a partner. A March 2016 report from Medicins Sans Frontieres (MSF) detailed how a dire lack of protection mechanisms, a weak justice system and a culture of impunity endangered the health and lives of victims of violence even if they managed to reach medical care.

    3.34The November 2015 HRW report found that police and prosecutors rarely pursued criminal charges against perpetrators of family violence, even in the most serious cases (such as those involving attempted murder, serious injury or repeated rape). Police often demanded money from victims before they would act, or simply ignored cases occurring in rural areas. Police appeared reluctant to refer survivors for protection orders, and survivors who sought protection orders frequently encountered delays in the courts. When police did get involved in family violence, they typically mandated mediation and reconciliation for the couples involved.

    3.35The November 2015 HRW report found there was a dire lack of services for people requiring assistance after suffering family violence. Most areas had no safe houses, and no area had enough. Qualified counsellors were largely non-existent, case management was rarely provided, legal aid was almost entirely absent, and there was no safety net to assist survivors, particularly those with dependent children, who needed temporary support and assistance to leave their abusers and become financially independent.

    3.36The Family Protection Act (2013) makes family violence a crime, punishable by up to two years and/or a fine of PGK6,000 (AUD2,750). The Act also created new mechanisms, including establishing Family and Sexual Violence Units (FSVUs) in police stations and Family Support Centres in hospitals, to protect and assist victims of family violence. As of the publication date, 15 FSVUs were operational nationwide, staffed primarily by female RPNGC officers. All were under-resourced, and only able to operate for limited hours despite considerable demand for their services. Although the Act came into force in March 2014, as of the publication date it was yet to be fully implemented.

    3.37A number of factors act as barriers to the full participation of women in the workforce in PNG. These include cultural stigma against women’s education or employment; gender discrimination; nepotism; the risk of violence and sexual abuse; high levels of female illiteracy; and low levels of female education. Restrictions to women achieving a good education include underage marriage, unwanted pregnancies, and lack of financial support. DFAT assesses that women across PNG have a high risk of societal discrimination due to long-standing traditional values and gender roles that restrict their ability to participate fully in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions.

    3.38DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in the Highlands provinces are at particular risk, although violence against women occurs nationwide. Women subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services

    ASSESSMENT OF CLAIMS AND FINDINGS

    Country of reference

1. The applicant provided a copy of her now invalid Papua New Guinea passports which are on the original Departmental file from 2011.

2. Based on this document and without evidence to the contrary, the Tribunal finds that the applicant is a citizen of the Independent State of Papua New Guinea, that Papua New Guinea is the applicant’s country of nationality and that Papua New Guinea is their receiving country for the purposes of complementary protection.

   Applicant’s accepted circumstances

3. Overall, the Tribunal found the applicant’s written and oral claims since 2014 to be generally consistent and reliable. While the applicant’s initial written and oral claims contained a number of inconsistencies compared to the more recent set of claims, those discrepancies are reasonably explained in that she feared her husband who advanced the claims on her behalf and her limited education and English language capacity. 

4. Having accepted the overall credibility of the applicant, the Tribunal makes the following findings regarding her claims about her personal circumstances and her later set of claims for protection:

5. The Tribunal accepts that the applicant was born in [year] in a village called [Village 1] in the [City 1] area within the Western Highlands Province of Papua New Guinea.

6. It is accepted that her father died when the applicant was very young (aged [age]) and that her mother, now very aged, resides in the [City 1] area.  The applicant explained she has four siblings: three brothers and a sister, all of whom live in the [City 1] area, and that like immediate and extended family members are subsistence farmers who generate some cash through small commercial crops.

7. It accepts the applicant can speak Tok Pisin, English and her tribal or Tok Place language, Melpa; that she belongs to the [Tribe 1] tribe, and that she belongs to the Christian denomination of the Assemblies of God. 

8. It is further accepted that the applicant completed the equivalent to year [grade] in her schooling and that she does not have any formal trades or qualifications. It is also accepted that the applicant after her very limited education, worked on subsistence farms tilled by her family when she resided in the [City 1] area until 2001 when she resettled in Port Moresby living with members of her tribe.

9. The Tribunal notes that the applicant claimed to be married between 2008 and 2013 to Mr [A] who was from the same area of the Western Highlands Province, as well as the same tribe as the applicant. It accepts the applicant and her husband lived in Port Moresby as a married couple prior to their 2009 departure to Australia.

10. More critical to the applicant’s claims is that her 2008 marriage to her husband became abusive because the applicant’s husband became aware that the applicant was not able to have children following a physical assault in 2001 by male members from the rival [Tribe 2] tribal group during a period of inter-tribal violence. It accepts the applicant’s husband and her in-laws were angry with her about this as they had rewarded ‘bride price’ to the applicant’s family on the condition that the applicant had not been defiled and was fertile. ‘Bride price‘ (or braitprais in Tok Pisin) is a customary practice whereby daughters or sisters are exchanged for money or livestock. In this case it was claimed that the applicant’s in-laws and her husband provided money and livestock (pigs) to the applicant’s family. The Tribunal accepts these claims to be true.

11. The applicant claimed that her husband’s physical, financial and other forms of domestic abuse continued to be directed to her while they were in Australia. She further claimed that the relationship ended in 2013 while the applicant was having or recovering from [surgery], that he cited the applicant’s inability to provide a child and that her husband conveyed threats to significantly harm the applicant if she returned to Papua New Guinea, where her husband returned. The Tribunal accepts aspects about her marriage breakdown.

12. During the hearing, the applicant claimed that her husband returned to Papua New Guinea, that he wanted to start a family but there is no formal divorce. She also stated that she is unsure of what his current whereabouts or circumstances have been since 2013. The Tribunal notes that the applicant has responded in the past indicating that she had much more definite knowledge about her husband’s circumstances. The Tribunal did not find this to be a significant discrepancy. Nonetheless, in this decision, it accepts this to be the extent of the applicant’s knowledge of her husband’s circumstances.

13. The applicant provided some details about her siblings’ circumstances although stated that she has not maintained frequent or regular contact with them due to poor communication links between their remote location and the rest of the world. The applicant claimed that her brothers live in polygamous marriages and that her family had to repay the bride price to the family of her sister’s in-laws while her sister did not gain meaningful custody of her children after her marriage broke down following domestic violence.

14. Asked at the hearing whether she had been in further significant relationships since her separation from her husband, the applicant claimed that she has never been engaged to be married, married or lived in de facto relationship. She also stated that has she never had any children, biological or otherwise. The Tribunal accepts this, and that if the applicant were to return to her country of reference, she would be returning as a separated woman who is not formally divorced for the foreseeable future.

15. Having accepted that the applicant was brought up in the [City 1] area, including her home village of [Village 1], and where her closest family members reside, the Tribunal finds, for the purposes of this decision, the applicant’s home area is the [City 1] area in the Western Highlands Province of Papua New Guinea.

16. Finally, the Tribunal also accepts the applicant has a [Medical condition 1] for which she has endured two surgeries and continues to take a range of medication to treat. It also accepts the applicant has serious but not debilitating mental health symptoms derived in part due to trauma for which she had engaged many years of counselling since arriving in Australia.

    Real risk of significant harm: gender-based violence from a former intimate partner

17. As outlined above, the Tribunal accepts that the applicant was in an abusive marriage with a Western Highlands male between around 2008 and 2013. The Tribunal accepts that the applicant holds genuine, deep and urgent personally held fears of persecution or significant harm that her separated husband will carry out his passing threats from 2013. However, the Tribunal finds there is little persuasive evidence for the Tribunal to believe that, objectively considered, the applicant’s former husband is strongly motivated to seek out and significantly harm the applicant, should she return to her country of reference.

18. Without exhaustively outlining in this decision its findings in this regard, the Tribunal does not have substantial reasons to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to her home country, will face a real risk of significant harm on the basis of her separation and estranged husband.

    Real risk of significant harm: forced marriage and bride price

19. Nonetheless, the Tribunal has found a strong thread of credible evidence that the applicant faces a real risk of significant harm, in the sense of being subjected to cruel or inhuman or degrading treatment or punishment, arising from the applicant being forced into marriage, as a necessary and foreseeable consequence of being returned to the applicant’s home area.

20. Firstly, as the applicant is a single woman with limited education, she has a real risk of being unavoidably relying on her immediate family and subsistence agricultural labour in order to avoid severe economic hardship. Should she seek out paid employment in the [City 1] areas, the Tribunal accepts the general thrust advanced by the applicant that only qualified, literate and connected persons, usually male, find remunerative work in the [City 1] [region].

21. Should the applicant return to her home area, the Tribunal accepts that there is a real risk of the family of the applicant’s husband – who belong to the same area and tribal grouping, will make demands or intimidate the applicant and her family members to repay the bride price associated with her 2008 marriage.  During the hearing, the applicant expounded that she faces a real risk of significant harm by her own family to forcibly marry another man to raise the value in livestock and/or money to repay the family of her former husband through ‘bride price’.

22. This leads the Tribunal to consider the prevalence of bride price as a practice that exists throughout Papua New Guinea but is mostly prevalent in the Highlands regions of that country. The available country information indicates that the practice of bride price leads to coercive practices against girls and women and that violence against women is particularly entrenched in parts of PNG’s Highland Provinces. The United States State Department’s current report on human rights practices in Papua New Guinea states, in part:

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

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

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

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

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

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

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

    Village courts tended to impose jail terms on women found guilty of adultery while penalizing men lightly or not at all. The law requires district courts to endorse orders for imprisonment before imposing sentences, and National Court justices frequently annulled such village court sentences. Polygyny and the custom in many tribal cultures of paying a “bride price” tended to reinforce a view of women as property. In addition to being purchased as brides, women sometimes were given as compensation to settle disputes between clans, although the courts have ruled that such settlements denied women their constitutional rights.[34]

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

23. This country information strongly indicates that, should the applicant return to the [City 1] area, a real risk of such degrading and grim practices associated with forced marriages and bride price are to be encountered by the applicant. The risk is heightened given her limited economic opportunity outside accepting familial support to avoid significant economic hardship. Under such circumstances, the Tribunal is strongly invited to consider the applicant, as a necessary and foreseeable consequence of being removed from Australia to her home area, faces a real risk of serious domestic violence and servitude amounting to cruel and inhuman treatment and extreme humiliation.

24. The Tribunal also accepts that the real risk of such significant harm is not mitigated by the available protections from the state. While there have been some recent measures to improve the responses of the police and the judicial system to these problems, effective state protection is largely absent. There is evidence of unwillingness on the part of the police, particularly in rural areas but also to some extent in Port Moresby and other major population centres, to regard domestic violence against women as a suitable matter for official action and a tendency to dismiss complaints or abet the offender. The judicial system, in particular at village level, has demonstrated a general inability or unwillingness to penalise the few offenders who are charged and brought before the courts.

25. Furthermore, the Tribunal has considered whether the wantok system provided sufficient protection to the applicant. (‘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 a tribal-based society such as 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 that those members of the tribe less able to look after themselves are supported.) [35] In this regard, the Tribunal has considered it a possibility that her family could repay the bride price notionally owed to the family of her separated husband. Afterall, it has been repaid in relation to her sister, according to the applicant. However, the applicant provided the compelling reasons that the degree of poverty associated with subsistence agriculture among her family, which included many wives, indicated that the family would be at a significant disadvantage in repaying the bride price without forcing the applicant into a marriage that entails bride price. Under such circumstances, the wantok system is likely to enforce that repayment, leaving the applicant without its protection.

    [35] DFAT Country information report, Papua New Guinea, 10 February 2017, p.3.

26. Based on its considerations of available lawful protection to the applicant, the Tribunal is also satisfied that the applicant could not obtain, from an authority of the country, protection as such, there would not be a real risk that the applicant will suffer significant harm, pursuant to s 36(2B)(b), in returning to her home area.

27. Lastly, the Tribunal accordingly accepts that the real risk to be faced by the applicant is not one to be faced by the population of the country generally and it is a real risk to be faced by the applicant personally, pursuant to s 36(2B)(c), due to the gender-based nature of forced marriages and bride price in the Western Highlands of Papua New Guinea.

28. In this regard, the Tribunal is satisfied that the applicant satisfies s 36(2)(aa) as it relates to the applicant’s home area of [City 1].

    Is it reasonable for the applicant to relocate to another part of her receiving country?

29. The Tribunal discussed with the applicant the possibility of relocation herself to any other areas of her receiving country, such as large urban centres such as Port Moresby, pursuant to s 36(2B).

30. The applicant explained that if she relocated to a city like Port Moresby, she would suffer a real risk of violence against her as a single woman. The Tribunal notes that the applicant’s representative has argued that relocation to larger cities and towns may exacerbate a woman’s vulnerability to violence. Women who internally relocate to escape violence are likely to lose all of their possessions, including titles to land, access to basic services and family protection. The process of relocating would likely result in harm, as women travelling alone in PNG are at a high risk of violent crime, including sexual assault and gang rapes.

31. On the one hand, by relocating to Port Moresby, the applicant should be able to find community members from the [Tribe 1] tribe – just as she had when she first settled in Port Morseby.  Indeed, she provided oral evidence in an earlier hearing that she lived with ‘an uncle’ in Port Moresby. She also provided oral evidence that she provided childcare for couples and was able to remain in Port Moresby for considerable time by providing such services.

32. On the other hand, however, the Tribunal accepts that she is unlikely to find suitable work in Port Moresby due to her limited skills and education as well as work experience and poor health. While she has her extended tribal and wantok practices operating in Port Moresby to provide some opportunities for safety and to avoid severe economic hardship, the risk of the family of her ex-husband knowing about her resettlement in Port Moresby is more than a remote or far-fetched one, given members of the same tribe will be orbiting between Port Moresby and her home area in [City 1]. This is not least because the same weak wantok practices to protect the applicant arising from her husband’s family demands regarding her owing bride price will exist in both her home area and wherever she relocates.

33. These circumstances strongly indicate to the Tribunal that the applicant faces a similar or analogous appreciable risk of significant harm regarding her marital status and her unresolved bride price in Port Moresby as she would in her home area.

34. Furthermore, the applicant will be returning to resettling in Port Moresby without any male companion or husband and no immediate family support. Outside of the limited protection from those people from the applicant’s shared tribal membership, it is the Tribunal’s assessment that the applicant remains at a real risk from opportunistic sexual assaults in Port Moresby (and other large urban centres outside of her home area). This is because she will be resettling as a vulnerable single female because the authorities do not provide adequate protection to women such as herself.

35. The available country information strongly indicates that throughout the applicant’s receiving country, the Royal Papua New Guinea Constabulary is unsatisfactorily trained, staffed and funded to address the endemic problems of sexual assault and violence towards women in larger cities as well as remote areas. This is despite recent but inadequate efforts to better target such violence through specialised sexual offence units within the constabulary.

36. Other state funded services are hazardously insufficient and oversubscribed to provide the ancillary legal and logistic services to the number of women in need of protection.  The Tribunal notes the following about services to protect women from domestic violence and sexual assault in the country information collated by COISS in the Common Claims: Papua New Guinea document (effective from 3 June 2020):

    There are limited prospects for female victims of family violence to relocate to other areas of Papua New Guinea, including Port Moresby. Safe houses and shelters for women experiencing family violence are extremely limited, are often at capacity, and offer only short-term placements.[36] For example, there are five shelters for abused women in Port Moresby, run by faith organisations, which often are at capacity[37], including the best shelter of this kind in PNG.[38] There is also a severe lack of other services for women including access to qualified counsellors, case management, financial support, or legal aid.[39] Relocation to larger cities and towns may also exacerbate a women’s vulnerability to violence. Traditional village familial networks (wantoks), which sometimes serve to mitigate violence, are weak and largely absent when locals relocate from villages to larger towns or Port Moresby.[40] Women who internally relocate to escape violence are likely to lose all of their possessions, including titles to land.[41] Social, cultural, political and economic discrimination against women is evident throughout PNG; even women in urban areas are considered to be second-class citizens.[42]

    [36] ‘Country Report on Human Rights Practices 2016 - Papua New Guinea’, US Department of State, 3 March 2017, p.15, OGD95BE926861; ‘DFAT Country Information Report Papua New Guinea’, Department of Foreign Affairs and Trade, 10 February 2017, p.17, CISEDB50AD227; ‘Return to abuser: Gaps in servicers and a failure to protect survivors of family and sexual violence in Papua New Guinea’, Médecins Sans Frontières (MSF), March 2016, p.8, CIS38A8012323; ‘Amnesty International Report 2016-2017’, Amnesty International, 23 February 2017, p.291, NG2A465F54; ‘Women seek islands of refuge in Papua New Guinea's sea of violence’, Davidson, H, The Guardian, 1 March 2016, CX6A26A6E1720; ‘Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo. Addendum. Mission to Papua New Guinea’, Manjoo R, United Nations General Assembly. Human Rights Council, 18 March 2013, pp.17–18 paragraph 76, on Refworld website, CIS26802.

    [37] ‘Country Reports on Human Rights Practices for 2019 - Papua New Guinea’, United States Department of State Bureau of Democracy, Human Rights and Labor, 11 March 2020, p.16 section 6, 20200312110546; ‘Country Reports on Human Rights Practices for 2018 - Papua New Guinea’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, p.17, section 6, 20190314114643; ‘Country Reports on Human Rights Practices 2017. Papua New Guinea’, US Department of State, 20 April 2018, p.18 section 6, OGD95BE927331.

    [38] ‘Sanctuary in a land where women are not safe’, Chatham House - The World Today, 01 April 2016, CIS38A80123138.

    [39] ‘World Report 2018’, Human Rights Watch, 18 January 2018, pp.417 & 420, NGED867A63.

    [40] ‘Country Report on Human Rights Practices 2016 - Papua New Guinea’, US Department of State, 3 March 2017, p.16, OGD95BE926861; ‘The country where rapists are proud and happy to pose for photos’, News.com.au, 1 June 2015, CXBD6A0DE7393.

    [41] ‘DFAT Country Information Report Papua New Guinea’, Department of Foreign Affairs and Trade, 10 February 2017, p.26, CISEDB50AD227

    [42] ‘Country Report on Human Rights Practices 2016 - Papua New Guinea’, US Department of State, 3 March 2017, p.17, OGD95BE926861

1. The available country information strongly invites the Tribunal to consider that the prevalence of gender violence towards vulnerable women, including single women and separated women with unresolved bride price such as the applicant is widespread throughout the applicant’s receiving country and not just her home area in the Western Highlands Province of Papua New Guinea.

2. Based on this country information and the applicant’s accepted personal circumstances which were lack of education and adequate familial support, the Tribunal finds that it would not be reasonable for the applicant to relocate to any area of Papua New Guinea. The applicant is therefore taken to have a real risk of significant harm throughout her receiving country pursuant to s 36(2B)(a).

3. Based on the same considerations, the Tribunal is also satisfied that the applicant could not obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm, pursuant to s 36(2B)(b).

4. There is no suggestion the real risk of significant harm to be faced by the applicant as a separated woman with no or little family or wantok protection outside of the [City 1] area, is not gender-based violence. The Tribunal accordingly accepts that the real risk to be faced by the applicant is not one to be faced by the population of the country generally and it is a real risk to be faced by the applicant personally, pursuant to s 36(2B)(c).

100.   The Tribunal finds that the significant harm that the applicant has a real risk of encountering amounts to being subjected to cruel and inhuman treatment or punishment and subjected to degrading treatment or punishment as required by s 36(2A)(d) and (e).

101.   Having considered all the aspects of the Act’s complementary protection provisions and the relevant information, the Tribunal has reached a strong degree of satisfaction that there are substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia to throughout Papua New Guinea, there is a real risk that the non-citizen will suffer significant harm.

102. Therefore, the applicant has met the criterion set out in s 36(2)(aa).

103.   With no evidence to the contrary, the Tribunal finds that the applicant has no right to enter or reside, either temporarily or permanently, in any safe third country for the purposes of s.36(3) in the Act.

Conclusion

104.   The Tribunal, differently constituted, concluded that the applicant did not meet the refugee criterion in section 36(2)(a) in an earlier decision.

105. Following a remittal by the FCCA, the Tribunal has reconsidered the alternative criterion in section 36(2)(aa), pursuant to SZGIZ.

106.   For the reasons outlined above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).

DECISION

107. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Brendan Darcy
Member