2010265 (Refugee)

[2021] AATA 4555

2010265 (Refugee) [2021] AATA 4555 (20 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010265

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Brendan Darcy

DATE:20 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 20 September 2021 at 6:57PM

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – Federal Circuit Court remittal – failure to take into account a relevant consideration – complementary protection criterion – gender-based violence from a former intimate partner – cruel or inhuman treatment or extreme humiliation – forced marriage and bride price – single woman of limited education – real risk of serious domestic violence – personal status laws and women in Papua New Guinea – state protection – Wantok system and Wantokism – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 48A, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
AMA15 v MIBP [2015] FCA 1424
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 and PNG).

3. The applicant first applied for a Class Subclass 866 Protection visa on 22 February 2011 (the 2011 Protection visa application). That application was refused on 20 April 2011 and affirmed by the former Refugee Review Tribunal (RRT) (differently constituted) on 15 July 2011. The applicant appealed that decision and the Federal Circuit Court (FCCA) dismissed the application [in] December 2011.

4. After this appeal, the applicant sought Ministerial Intervention; however, the Minister declined to intervene on 23 February 2012.

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 9 August 2013 the applicant applied for a further protection visa (the current application under review), pursuant to the Federal Court of Australia decision in SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ). The delegate refused to grant the visa on 4 February 2015.

7. On 22 September 2017 the decision was affirmed by the Tribunal, differently constituted (previous Tribunal). The applicant sought judicial review in the FCCA on 5 June 2020, orders were made by consent remitting the matter to the Tribunal for re-determination. (The matter was remitted by consent on the basis that the Tribunal erred by failing to have regard to a relevant consideration, namely the potential opposition of the applicant’s father to her being afforded shared accommodation by her mother, and a consequent measure of protection, upon return to her village in PNG.)

8. The applicant appeared before the Tribunal on 16 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 Pidgin (Melanesian) and English languages.

9. The applicant was represented in relation to this review.

   RELEVANT LAW

10. 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

11. The Full Federal Court in SZGIZ 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.

12. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in
    s 36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s 36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to the complementary protection criterion contained in s.36(2)(aa).

    Complementary protection criterion

13. 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’).

14. ‘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.

15. 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

16. 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

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

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

    Background

19. The applicant was born on [date] in [City 1], West Highlands Province, PNG, she is a [age]-year-old national of Papua New Guinea.

20. In her protection visa application, the applicant did not note an ethnicity, and stated her religion was Christian, belonging to the Lutheran denomination.

21. In her protection visa application, the applicant claimed to speak English and Tok Pisin, and read and write Tok Pisin.

22. Apart from Papua New Guinea, the country of her birth, the applicant has only ever travelled to Australia.

23. The applicant was granted a [Tourist] visa on 24 February 2009. She arrived in Australia for the first time [in] March 2009 and departed [in] June 2009.

24. The applicant was granted a second Tourist visa on 2 December 2009 and subsequently arrived in Australia [in] January 2010. The Tourist visa ceased on 13 February 2010, at which time the applicant remained in Australia unlawfully.

25. The applicant lodged her first set of claims for protection on 22 February 2011 and was granted a Bridging Visa C on that date. She held a series of Bridging Visas C until 12 December 2012, at which time she again remained in Australia unlawfully.

26. In the applicant’s first set of claims, the applicant claimed that her father was deceased and that she was a member of an anti-PNG government group for which she has been arrested, tortured, imprisoned and, when released, harassed by the authorities.

27. The Department refused to grant the applicant a protection visa on 20 April 2012. The applicant applied to the Tribunal, differently constituted, on 13 May 2011. The applicant did not attend the scheduled hearing. Under s 426A of the Act, the Tribunal proceeded to affirm the delegate’s decision on 14 July 2011.  

28. The applicant lodged the present protection visa application on 9 August 2013 and was granted a Bridging Visa C on that date. She has remained lawfully in Australia since on a series of Bridging Visas C.

29. In the present visa application, the applicant indicated that she did not have any family members or close relatives either in Australia or elsewhere.

    ·     In a statutory declaration made 21 May 2014 the applicant indicated her parents, two older brothers and an older sister remained in PNG. She has a former de facto partner in PNG.[1]

    ·     On 30 June 2014 the applicant furnished the Department with a Form 80 that indicated she was not partnered, nor had any children. Her father was deceased, while her mother remained in Papua New Guinea. She further claimed she has three siblings: two brothers and a sister who remain in the applicant’s country of nationality; [2]

    ·     In a further statutory declaration made 15 December 2014 following her interview with the delegate, the applicant stated that the Form 80 indicating her father was deceased was an error and that her father is alive. She had not spoken to her siblings for some time as she feels they hate her and she does not consider them close relatives.[3]

    Non-disclosure certificates

    [1] [Department file number] Folios 106–114.

    [2] [Department file number] Folios 94–102.

    [3] [Department file number] Folios 131–132.

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

    Claims

    The 2011 Protection visa application

31. The 2011 Protection visa application was centred on the applicant’s claim that she was a member of the Anti Papua New Guinean government group because the government was very corrupt and not functioning well. She stated she was arrested while in a protest and while in prison, she was tortured. She stated that after she was released, the government officers and local police came to her and asked her for money.[4]

    [4] RRT Case Number 1104805 Decision Record 4.

32. The applicant’s statutory declaration of 21 May 2014 dealt with the circumstances surrounding the 2011 Protection visa application at some length in which she resiled from that initial set of claims. The explanation can be summarised as follows:[5]

    [5] [Department file number] Folios 106–114.

    ·     After arriving in Brisbane in February 2010, she met some [Country 1] men at the backpackers hostel she was staying in. The men told her they were travelling to Adelaide where they had friends who would be fruit picking, they asked the applicant if she wanted to join them and she accepted.

    ·     While in Adelaide she met another [Country 1] man she thinks was named [Mr A] who informed her about protection visas that would enable her to stay in Australia. She travelled within this man and the other [Country 1] men to Sydney to see a lawyer.

    ·     When in Sydney she paid [Mr A] $1,500 for the lawyer. She then met the lawyer in a group with the other men. She did not meet the lawyer in private or tell him why she was afraid to return to her country of nationality.

    ·     The next day she returned to the lawyer’s office and signed some papers which she thinks might have been the 2011 Protection visa application. She returned to Adelaide a few days later.

    ·     Following this she returned to Sydney in early March 2011 to sign some papers for the lawyer. The following day she went to the Immigration Department in Sydney and was issued a Bridging Visa C after providing biometric information. The applicant returned to Adelaide.

    ·     The applicant found out she had an appointment in Sydney in September 2011, [Mr A] gave her directions to attend the interview and how to answer the questions. The applicant was not accompanied by the lawyer or the [Country 1] man. When the applicant arrived at the court there was no Tok Pisin interpreter for her and she was told to come back in a week.

    ·     She went to the lawyer’s office and tried calling him but did not receive a response. She decided to return to Adelaide.

    ·     She told [Mr A] it was too far to go from Adelaide to Sydney and the [Country 1] man told her he would speak to the lawyer and have her matter transferred to Adelaide. Some time after this she went with the [Country 1] man to the Department in Adelaide but her file was not there.

    ·     [Mr A] told the applicant he had spoken to the lawyer and she needed to pay another $600, she gave this to the [Country 1] man in cash. About three weeks later [Mr A] asked for a further $400 which she paid him.

    ·     In or around October 2011 [Mr A] drove her into Adelaide and gave her directions to get to the court. When at court a Pidgin interpreter was arranged for her, and she provided some background information. When asked if she had a lawyer she told the court she had tried calling her lawyer in Sydney but couldn’t get an answer. The court told her she needed to go to her lawyer to write down more of the story as the court did not have enough information. 

    ·     She made further attempts to contact her lawyer but still got not answer. She tried to contact [Mr A] but he had left Adelaide and changed his phone number. Her friends from the farm informed her that [Mr A] had taken money from them too and run away.

    ·     She kept working in Adelaide throughout 2012 hoping her lawyer would contact her – she did not return to court or the Department.

    ·     She was informed by friends in Adelaide of a place in Melbourne where she might be able to get help. She travelled to Melbourne on 17 June 2013 and first met with the Asylum Seeker Resource Centre (ASRC) later that day, and with their legal team on 2 July 2013.

    ·     Through ASRC, contact was made with her former lawyer who said that the applicant was not their client. She only became aware of the false claims contained within the 2011 Protection visa application and its eventual outcome on 24 July 2013.

    ·     The applicant had never lived at the Sydney addresses on the previous protection visa application.

    ·     The applicant was sorry she has been unlawful for an extended period of time, but she was unaware that she could be removed from Australia to Papua New Guinea. When immigration officers came and took some of the other farm workers it prompted her to agree to seek a protection visa from the [Country 1] man.

    Present visa application

33. The present visa application was lodged with the Department in 9 August 2013, along with a letter from the applicant’s representative and a copy of the decision in SZGIZ addressing validity.

34. In answer to the relevant questions regarding her claims in Form 866C:[6]

    ·     The applicant sought protection in Australia from being returned to Papua New Guinea.

    ·     The applicant stated that she left Papua New Guinea because she feared for her life, and that she would be subjected to significant harm at the hands of her boyfriend/partner that could lead to her death. She had been subject to abuse and beatings from her boyfriend/partner which brought about the fear for her life.

    ·     In addition to the domestic violence she claims to have been persecuted because of her gender.

    ·     She fears she will be harmed or killed if she returns to Papua New Guinea, as her boyfriend/partner will be even angrier with her.

    ·     She would not be able to seek the aid of authorities in Papua New Guinea as they do not involve themselves in family disputes or violence, and this may lead to further persecution as a single female.

    ·     Her claims would be fully set out in a statutory declaration to be delivered to the Department within six weeks.

    [6] [Department file number] Folios 15–16.

35. The applicant expanded on her claims in her statutory declaration of 21 May 2014, summarised as:[7]

    [7] [Department file number] Folios 106–114.

    ·     The applicant was born in [City 1], Western Highlands Province, PNG and grew up in the village of [Village 1], which is a [number] or [number]-hour vehicular drive from [City 1].

    ·     The applicant’s parents are farmers. She has two older brothers and an older sister who are also farmers growing small crops like [Crop 1] and [Crop 2].

    ·     The applicant completed schooling up to [number deleted] grade, she did not pass the test to continue her schooling and commenced work on her parents’, and other people’s farms. This work generally involved selling produce in the markets in [City 1].

    ·     In 2006 she met [Mr B] with whom she struck up a romantic relationship and lived with up until her most recent arrival in Australia in January 2010. [Mr B] was a [Occupation 1].

    ·     When the applicant went to live with [Mr B], her parents thought that they would eventually be paid a bride price. After about a year it became clear this would not happen and her parents became upset and angry with [Mr B], though eventually this anger passed. The applicant and [Mr B] would sometimes visit her parents in their village.

    ·     During 2008 the applicant decided to come to Australia for a holiday, having heard how nice it was from people in Papua New Guinea. She obtained her passport [in] 2008 and needed assistance obtaining an Australian visa. She sought the assistance of her friend [Ms C]’s husband [Mr D], she paid him money to get the visa, but does not know what he needed to do to get it.

    ·     The applicant arrived in Brisbane [in] March 2009, she funded the holiday through savings, spending two months in Brisbane and a month in Cairns staying in backpacker hostels.

    ·     [Mr B] did not join her on this holiday as it would cost the couple too much money and [Mr B] stayed in her country of origin to look after their farm. They discussed travelling together on a future trip.

    ·     The applicant and [Mr B] had a good relationship prior to her holiday in Australia. Upon her return [Mr B] was drinking and got drunk a lot as well as using drugs. He would get sometimes get angry at nothing.

    ·     Prior to March 2009 [Mr B] would sometimes go out on Friday and Saturday nights drinking, they would often fight and then make up as a result of this. From June 2009 this became much worse and [Mr B] would assault the applicant more and more.

    ·     In September 2009 the applicant went back to her parents, but they would not permit her to stay with them. They said the applicant has to stay with [Mr B], she had made her own decisions. On further occasions in September and October 2009 her parents refused to permit the applicant to stay with them. Her parents were angry with [Mr B] for failing to pay the bride price, they also feared violence at his hands.

    ·     During September 2009 the applicant found out from her neighbours that [Mr B] was selling drugs in addition to using them.

    ·     [Mr B]’s violent behaviour toward the applicant escalated in September 2009, including him threatening the applicant with knives. This would cause the applicant to hide outside the home until she thought he was sleeping. The hospital was too far away for the applicant to seek medical attention for her injuries, she would perform first aid on herself.

    ·     About this time the applicant became fearful that [Mr B]’s violent behaviour would escalate to the point where he would kill her.

    ·     While the applicant sought help and shelter with her parents, extended family, friends and neighbours they all refused as they were afraid of [Mr B]’s violent behaviour. [Mr B] had threatened some of them with knives, they would not come to the applicant’s aid when [Mr B] was assaulting her.

    ·     When the applicant sought assistance from the local police in [City 1] she was informed they would not assist as it was a family matter.

    ·     During October 2009 [Mr B] poured a pot of boiling water over the applicant’s leg while she was cooking and he was under the influence of drugs. It took her a month to recover from the injury while confined to their home.

    ·     During this time [Mr B] would continue to assault the applicant on a weekly basis. During the first week of November 2009 at around 3:00 am one morning the applicant was woken by [Mr B] who began strangling her, he only stopped when she grabbed his private parts.

    ·     In November 2009 she saw her friends [Ms C] and [Mr D] and informed them she wished to travel to Australia again to run away from [Mr B]. [Mr D] helped the applicant secure another visitor visa, the applicant paid [Mr D] for this.

    ·     The applicant is seeking protection in Australia as she fears violent treatment at the hands of [Mr B] and the PNG authorities will not assist or protect her.

    ·     Further the applicant is not able to seek protection from her family due to their hatred of her as [Mr B] did not pay a bride price.

    ·     She has not had contact with anyone in PNG since 2010 and does not know [Mr B]’s circumstances or whereabouts. She would be homeless due to the lack of support from her family. Due to the nature of village life [Mr B] would be able to easily locate her.

    ·     She has no friends or family elsewhere in PNG and lacks means and qualifications to support herself.

1. The applicant’s representative made legal submissions outlining her claims, the legal framework and country information to the delegate on 4 December 2014.[8] Broadly the legal submissions put forward the position that the applicant has a well founded fear for persecution in PNG on the basis of her membership of the following particular social groups:

   ·     Women in Papua New Guinea;

   ·     Married women in Papua New Guinea;

   ·     A woman in Papua New Guinea subject to domestic violence and abuse; and

   ·     Women without male protection in Papua New Guinea.

   [8] [Department file number] Folios 116–121.

2. The applicant attended an interview with the delegate on 8 December 2014, she was assisted by her Representative and an interpreter in the Pidgin and English languages.

3. The applicant made a further statutory declaration on 15 December 2014.[9] This written statement provided further details around her family composition, contact with her family in Papua New Guinea following her arrival in Australia, her living and work arrangements in Australia during the time she was based in or around Adelaide, and issues with the interpreter used for the interview.

   [9] [Department file number] Folios 131–132.

4. This statutory declaration was accompanied by a legal submission from the applicant’s representative arguing that there was a departure from the appropriate standard of interpretation at the interview.[10]

   [10] [Department file number] Folios 133–136.

5. The applicant made a further statutory declaration on 16 December 2014 clarifying information given in the 15 December 2014 declaration.[11] Further legal submissions pertaining to the interpreting at the interview were made to the delegate on 27 January 2015.[12]

   [11] [Department file number] Folios 141–142.

   [12] [Department file number] Folios 144–146.

6. The delegate refused the visa on 4 February 2015.

   Before the previous Tribunal

7. The applicant made a further statutory declaration on 27 November 2015[13] which was submitted to the Tribunal along with legal submissions from her representative.[14] The contents of the statutory declaration can be summarised as follows:

   [13] Tribunal file 1502368 Folios 64–72

   [14] Tribunal file 1502368 Folios 63–77.

   ·     The applicant continued to rely on the content of her previous declarations as being true and correct.

   ·     She expanded on her concerns regarding the quality of the interpreting during the interview with the delegate.

   ·     She gave further information on the circumstances surrounding her holiday in Australia in June–September 2009 in response to the findings of the delegate.

   ·     She gave further information regarding material contained in her second tourist visa application in response to findings of the delegate. The applicant restated that she paid a bribe to [Mr D] to arrange the visa, she signed the application form but was not aware of its content.

   ·     She gave further details surrounding her work and residence history in Australia from the time of her arrival in January 2010 through to her arrival in Melbourne in 2013.

   ·     She gave further details surrounding the circumstances of the 2011 Protection visa application and her interactions with [Mr A].

   ·     Relevant to her claims, she restated that she had lived with [Mr B] for four years from 2006 to 2009 as husband and wife. She referred to [Mr B] as her partner. They were not married legally, and as [Mr B] had not paid the bride price they were not married according to custom.

   ·     The applicant clarified that while [Mr B] would occasionally become drunk and violent prior to her holiday in Australia in 2009, the behaviour escalated following her return from holiday.

   ·     The applicant claimed that the delay between the grant of the second tourist visa and her arrival in Australia in 2010 was due to her needing to save money to afford flights and to support herself once she arrived in Australia.

   ·     The applicant stated she had recently been in contact with her mother in PNG via telephone on a monthly basis. She had not spoken to her mother about her protection visa application.

   ·     The applicant restated her fear that if she returned to PNG [Mr B] would find her and she would not be safe.

8. The applicant appeared before the previous Tribunal on 12 September 2017 to give evidence and present arguments. The hearing was conducted with the assistance of a translator in the Pidgin and English languages. The applicant’s then representative was present at the hearing.

9. At the hearing the applicant told the previous Tribunal that while her mother had recently seen [Mr B] in the market in [City 1] and that he looked mentally unwell, that he has not been in contact with members of her family in PNG to try and find her. The applicant said her family are scared of [Mr B] and would not be likely to have contact with him.

10. The applicant informed the previous Tribunal that she had been in contact with her mother in PNG since 2011.

11. In legal submissions by the applicant’s then representative dated 14 September 2017, it was clarified that the applicant and her mother had agreed not to talk about [Mr B] during their telephone conversations.

12. The Tribunal Member who was earlier constituted in this matter, affirmed the decision of the delegate not to grant the applicant a protection visa on 22 September 2017.

    Material before the present Tribunal

13. The applicant’s representative forwarded legal submissions and a further statutory declaration made by the applicant on 14 September 2021 to the Tribunal on 14 September 2021.

14. The contents of the statutory declaration can be summarised as follows:

    ·     The applicant continues to rely on her statutory declarations of 21 May 2014, 15 December 2014 and 27 November 2015.

    ·     The applicant stated that when she came to Australia in 2010 she did not tell any of the members of her family. She restored contact with her mother a few years later and they speak on the phone every couple of months.

    ·     The applicant’s mother saw her ex-partner a few months ago near the bus stop in [City 1], he was looking very dishevelled and begging.

    ·     She has had no contact with her father or siblings since leaving Papua New Guinea in 2010.

    ·     The applicant stated that her father was often physically violent toward her mother when she and her siblings were children.

    ·     The applicant stated that physical violence has been a feature of her siblings’ marriages prior to her departure from her country of origin.

    ·     The applicant stated that domestic and family violence is often the source of wider tribal conflict in the Highlands regions of Papua New Guinea.

    ·     Drug abuse had become a serious issue in PNG before her departure, this would often lead to sexual violence toward women of opposing tribes committed by men under the influence of drugs.

    ·     The applicant stated she was aware of sexual violence being perpetrated against women without male protection, the offenders paid penalties in the local Peace committee rather than face criminal prosecution. Incidents of sexual violence were usually resolved between the families of the victims and perpetrator rather than the criminal justice system.

    ·     The applicant stated she continues to fear serious harm at the hands of [Mr B] should she return to PNG, and that he is still present in the [City 1] area. She also fears returning to Papua New Guinea as a single woman and that she could end up homeless as a result.

    ·     The applicant stated she did not think it would be possible to live with her parents should she return to PNG. There is no work in the village where they live and she would need to find work in [City 1]. Due to the length of time she has been away from PNG she would not be able to get assistance in finding a job.

    ·     She does not feel she could live anywhere else in PNG as she has no friends or family in other parts of Papua New Guinea.

    ·     If returned to Papua New Guinea as a single woman without male protection this would place her in a very vulnerable position.

    Country information: Papua New Guinea

    Personal status laws and women in Papua New Guinea

15. 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

16. The applicant provided a copy of her Papua New Guinea passport which is on the departmental file.

17. 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.

    Findings

    Applicant’s accepted circumstances

18. The applicant provided a set of claims in 2011 which were political in nature. She lodged these claims after her second visit to Australia and once she had become an unlawful non-citizen. The claims included being a member of an unidentified anti-government group, being tortured and imprisoned before somehow evading the authorities in PNG when she departed. The applicant had earlier resiled from these claims in 2015. At the hearing, she explained that she paid an alleged migration agent or lawyer who prepared a number of claims for [Country 1] nationals seeking protection visas for about $1500 per applicant. The applicant admitted that she wanted to stay in Australia but due to her lack of education was not aware of her options and was susceptible to being exploited.

19. It is open to decision-makers to make overall adverse credibility findings about the applicant on the basis of a combination of the applicant’s irregular visa history and her admitting she has provided false and misleading claims in the past. The Tribunal has found the applicant presented otherwise consistent and credible written and oral claims and it accepts that the circumstances in which she had provided a set of false claims of protection to be credible.

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

21. 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. It is accepted that her mother and father are not deceased and continue to reside in the [City 1] area.  The applicant explained she has three siblings: two brothers and a sister, all of whom are married and live in the [City 1] area, and that like her parents, her siblings are subsistence farmers who generate some cash through [specified] crops.

22. It is further accepted that the applicant completed the equivalent to primary school in Australia and that she does not have any trades or qualifications, It is also accepted that the applicant after her very limited education, worked on subsistence farms tilled by her family and other extended relatives.

23. The Tribunal accepts the applicant can speak Tok Pisin or Pidgin, English and her tribal or Tok Place language associated with her tribal grouping, Melpa.

24. The applicant claimed that the area of PNG from which she belonged included widespread violence between tribal groupings and limited opportunities to engage employment in the cash economy or the salaried labour market. This, in turn, means the applicant with her limited education and skills was heavily reliant on her family for material support. The Tribunal accepts this.

25. More critical to the applicant’s claim is that she entered a relationship with a male living in the same area as the applicant, [Mr B]. She began living with this individual in a de facto relationship in 2006, much to the disapproval of her parents, especially her father who insisted that the applicant’s partner owed his family ‘bride price’ – a customary practice whereby daughters are exchanged for money or livestock. The Tribunal accepts these claims to be true.

26. The applicant claimed that her relationship with her de facto partner began to sour after her return trip to Australia in 2009. She claimed that the abuse included physical violence, attempted strangling, intimidation of the applicant with knives and other weapons, and threats to her parents. The applicant claimed that on one occasion, boiling water was poured over the applicant’s leg. According to the applicant, the relationship deteriorated, at least in part, due to her partner’s substance abuse and drug trafficking. The applicant also claimed that her parents refused to provide her a sanctuary on at least three occasions when she tried to escape the intimate partner violence.  Fearing the violence was going to escalate, the applicant decided to depart Papua New Guinea for Australia, so ending the relationship in 2010. The Tribunal accepts this.

27. Asked at the hearing whether she had been in further significant relationships, the applicant claimed that she has never been engaged to be married, married or lived in another de facto relationship. She also stated she has never had any children. The Tribunal accepts this, and that if the applicant were to return to her country of reference, she would be returning as a single woman for the foreseeable future.

28. Having accepted that the applicant was brought up in the [City 1] area, including her home village of [Village 1] and that she has not spent any meaningful amounts of time outside of this area, 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.

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

29. The Tribunal accepts that the applicant was in a de facto relationship with a Western Highlands male named [Mr B] between around 2006 and 2010. It accepts that the relationship soured whereby the applicant’s former partner when she returned to PNG after visiting Australia for the first time. The Tribunal has considered the applicant’s risk of being significantly harmed by a former intimate partner as one that amounts to remote and insubstantial risk and not a real risk. The Tribunal notes that in the earlier decision made in 2017, the presiding Member made similar findings. Without exhaustively outlining those reasons in this decision, this presiding Member generally concurs. In short, given the passage of time and the evidence provided by the applicant whereby no threats of intimidation had been conveyed to the applicant, either directly or indirectly, this did not strongly demonstrate that her former partner was strongly motivated in harming her, if she returned to her home area of [City 1].

1. 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 area, faces a real risk of significant harm on the basis on her past relationship with her former de facto partner.  

   Real risk of significant harm: forced marriage and bride price

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

3. Firstly, the applicant is a single woman of limited education who has a real risk of being unavoidably relying on her immediate family and subsistence agricultural labour whereby she could 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, which is principally a transportation hub for the PNG Highlands’ timber, mining, tea, coffee and pyrethrum industries.

4. During the hearing, the applicant articulated her genuine personally held fear that she would only be received back into her family in the [City 1] area if she agreed to being married and that the marriage would be both arranged and forced which would entail a bride price.

5. This leads the Tribunal to consider the prevalence of bride price as a practice that exists not only in the Highlands regions of Papua New Guinea. 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 Highlands 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.[15]

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

6. Thirdly, the Tribunal accepts the applicant holds a fear that as she is not married, she will be coerced into a forced marriage, principally by the male members of her family, in order for them to materially and socially benefit. The applicant claimed being relatively mature woman in her [age range] meant a marriage with a man who probably already had wives was not excluded. She claimed her worst fear was being forced into a polygamous marriage with a man afflicted by sexually transmitted disease and being forced into domestic and sexual servitude involving physical and other violence. Should the applicant remain in the [City 1] area, the Tribunal accepts that there would be a real risk of such significantly degrading and cruel practices given her limited economic opportunity outside accepting familial support to avoid significant economic hardship. Under such circumstances, the applicant is likely to be at a real risk of serious domestic violence amounting to cruel and inhuman treatment and extreme humiliation.

7. Fourthly, 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. In this regard, 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.

8. Furthermore, the applicant expressed no faith in her family or the wantok system to protection her. (‘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.)[16]

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

9. 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 Central Highlands of Papua New Guinea.

10. 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?

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

12. The applicant explained that relocation to a city like Port Moresby would not reduce the risk of sexual violence against her. She claimed that she would not be able to find paid employment easily due to her limited education and lack of social networks. She claimed there were not extended family members to assist her with resettling in cities, including finding accommodation. Neither did she have any meaningful wantok protection outside of the [City 1] area. The applicant said without male or family or wantok protection she was at a real risk from opportunistic sexual assaults because she was single, female and because the authorities do not provide adequate protection to women such as herself.

13. 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.

14. 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.[17] For example, there are five shelters for abused women in Port Moresby, run by faith organisations, which often are at capacity[18], including the best shelter of this kind in PNG.[19] There is also a severe lack of other services for women including access to qualified counsellors, case management, financial support, or legal aid.[20] 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.[21] Women who internally relocate to escape violence are likely to lose all of their possessions, including titles to land.[22] Social, cultural, political and economic discrimination against women is evident throughout PNG; even women in urban areas are considered to be second-class citizens.[23]

    [17] ‘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

    [18] ‘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

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

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

    [21] ‘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

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

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

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

16. Based on this country information and the applicant’s accepted personal circumstances which were lack of education and 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).

17. 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).

18. There is no suggestion the real risk of significant harm to be faced by the applicant as a single 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).

19. 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).

20. 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.

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

22. 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

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

24. Following a remittal by the Federal Circuit Court, the Tribunal has reconsidered the alternative criterion in s 36(2)(aa), pursuant to SZGIZ.

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

    DECISION

26. 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