1725125 (Refugee) [2021] AATA 4468 (29 September 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
CASE NUMBER:	1725125
COUNTRY OF REFERENCE:	Papua New Guinea
MEMBER:	James Lambie
DATE:	29 September 2021
PLACE OF DECISION:	Brisbane
DECISION:	The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 29 September 2021 at 10:43am

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – women – separated Papua New Guinean woman – gender-based violence – fear of attacks by tribal gang – fear of killing – delay in applying for protection – state protection – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499 
Migration Regulations 1994, Schedule 2 cl 866.211

CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.  	This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2.  	The applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 28 June 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). 
Criteria for a protection visa
3.  	The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
4.  	Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
5.  	A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
6.  	Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
7.  	If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
8.  	In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
9.  	The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background:
10.  	[The applicant], is [an age]-year-old woman from Papua New Guinea (PNG). 
11.  	[The applicant] has been separated from her husband, [Mr A] since 2011. 
12.  	[The applicant] first arrived in Australia pursuant to a tourist visa [in] July 2009. She departed Australia [in] September 2009 and re-entered Australia [in] March 2016 as the holder of a tourist visa. 
13.  	On 28 July 2016, [the applicant] lodged a Class XA, Subclass 866 (Protection) visa application, which was refused by the Department in a decision dated 13 September 2017. 
14.  	On 16 October 2017, she applied for merits review of the Department’s decision to refuse her application for a protection visa. 
Claims:
15.  	[The applicant’s] protection claims are set out in her protection visa application, written claims, and the delegate’s decision. 
16.  	[The applicant] claims she experienced domestic violence from her husband (‘[Mr A]’) from 2004 to 2011. She claims to fear her husband or his tribesmen will kill her. 
17.  	She claims the police told her to return home after she attempted to seek help. She claims she moved around Port Moresby to seek safety. 
18.  	She claims her husband is waiting at the airport for her and is wealthy enough to track her down wherever she goes in PNG. 
19.  	[The applicant] claims to fear returning to PNG by virtue of her status as a woman in Papua New Guinea and a separated woman PNG. 
Delegate’s decision
20.  	The delegate accepted that [the applicant] had experienced serious harm in the form of domestic violence from her husband in PNG but did not accept that she had experienced threats or harm from any of her husband’s friends. It was, however, accepted that she holds a subjective fear of harm by her husband and his friends. It was also accepted that [the applicant] obtained assistance from her doctor and protection from her community leaders in regard to the harm experience from her husband. The delegate found that the applicant had not been harmed by her husband for approximately four years prior to the last arrival in Australia and had not seen or heard from her husband for some two and a half years prior to her last arrival in Australia. The delegate found that [the applicant] had embellished her claims of fear following separation from her husband. Part of the basis of that finding was that, despite having become aware of the availability of protection visas after her first visit to Australia in 2009, it was not until 2016 that she returned to Australia and made the application.
Evidence:
21.  	The Tribunal has before it a range of material, including, relevantly:
(a)	The applicant’s protection visa application forms dated 27 June 2016; 
(b)	The applicant’s identity documents being copies of her passport and passport photographs, provided to the Department; 
(c)	The protection visa decision record dated 13 September 2017 (delegate’s decision);
(d)	Department files concerning the applicant’s protection visa application, which include all documents submitted by the applicant in support of her protection visa application, including a statutory declaration from the applicant, sworn on 16 August 2017;
(e)	All documents submitted to the Tribunal in support of the applicant’s application for review, including:
•	a written statement from the applicant dated 22 May 2021; 
•	a psychologist report by [a named psychologist] dated 30 May 2021;
•	a medical letter by the applicant’s treating GP dated 14 August 2021;
•	an undated employment reference from her current employer, [named] from [business name];
•	a statement purportedly made by [Police Officer B] [in] June 2009; and
•	a statutory declaration from the applicant’s sister, [Sister C], sworn on 17 August 2021.
(f)	Country information from the applicant’s submissions, the Department of Foreign Affairs and Trade’s latest country information report on Papua New Guinea, published on 10 February 2017 (DFAT Report on Papua New Guinea) and other sources concerning Papua New Guinea relevant to the applicant’s claims, as set out below. 
Country of reference:
22.  	The applicant claims to be a citizen of Papua New Guinea. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Papua New Guinea is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
23.  	The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing
24.  	The applicant attended in-person hearings before the Tribunal on 8 July 2021 and 19 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, [Ms D]. The hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
25.  	After dispensing with the hearing preliminaries, including a description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa, she must either be recognised as a refugee or be a person entitled to Complementary Protection.
26.  	The Tribunal explained that under Australian law, to be a refugee, she must have a well-founded fear of persecution in Papua New Guinea. This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if she is returned to Papua New Guinea. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Papua New Guinea.  
27.  	The Tribunal took [the applicant] to her statutory declaration dated 16 August 2017, the substance of which is summarised in paragraphs 10 to 19 above. She told the Tribunal that, since moving to Australia, she has lost contact with her parents and has not spoken to them, nor to her son (born to her first partner in [year]) who, last she heard, was living with her parents in Port Moresby.
28.  	[The applicant] reiterated in her evidence to the Tribunal her claim that, following her marriage to [Mr A] in 2004, his behaviour towards her gradually became worse and worse. She claimed that he was involved with a street gang, the identity and numbers of whom she could not recall, although she believed there were more than 10 of them. She reiterated the evidence in her statutory declaration that she was subjected to a violent assault by [Mr A] in 2008 and miscarried as a result. When asked why the medical reports referred to an ectopic pregnancy, she told the Tribunal that the violence to which she was subjected resulted in the baby forming in the fallopian tube. Although I have reason to doubt the correctness of this advice, I have no reason to doubt that [the applicant] may in fact have been told this. Her evidence of the violence inflicted upon her was credible and consistent with her previous accounts.
29.  	[The applicant] told the Tribunal that she spent three weeks in hospital following this incident and that the doctors at the hospital had warned [Mr A] about his behaviour and had furnished her with a medical report to give to the police if there was any further violence. She said that his violence abated for a short while before resuming in 2009.  At this time, she began to consider travelling to Australia to get away from the situation for a while.
30.  	[The applicant] described [Mr A’s] assault on her of [date] June 2009, in which she was violently beaten, locked in a room, and threatened with weapons. At one stage he told her that, when he had finished his six pack of beer, he would be coming into the room to kill her. She managed to escape to her parents’ house, but [Mr A] found her some two hours later, menacing her with a bush knife and stabbing her with a small pocketknife around the face. Her parents and [Sister C], took her to the clinic to have her injuries dressed and then to the police station to make a complaint. Her younger sister, [Sister D], may have assisted with the police report. [The applicant] said the police told her to solve the matter at home. [The applicant] stayed with her parents for three weeks and then travelled to Australia. [Mr A] did not make contact with her in the aftermath of this assault.
31.  	[The applicant] stayed with a family friend while she was in Australia. She returned to PNG after three months. On her return, her parents told her that [Mr A] had apologised and had promised no further violence. However, after a short period, the violence resumed. [The applicant] reiterated her previous evidence that from late 2009 until about 2011, [Mr A] raped and beat her repeatedly and attacked her with weapons. He also found the medical reports referred to above and burnt them along with her clothes. He told her that he wished to take a second wife. When [the applicant] said that she would return to her parents, he insisted that she should stay.
32.  	[The applicant] ran away from [Mr A] in 2011 and went to stay with her parents for about 18 months. A mediation was arranged with a church elder, attended by [the applicant] and [Mr A], and members of both of their families. It was agreed that [the applicant] and [Mr A] should separate, and the church elder obtained a restraining order. The elder promised to help enforce the restraining order if [Mr A] violated its terms. Despite the restraining order, [the applicant] says that [Mr A] continued to come around to her parents’ house when he was drunk and would shout threats at her. She believes that he may have been deterred by the restraining order from entering the house and committing further violence against her. However, out of fear she sought to maintain a very low profile while staying with her parents and avoided the main market. Because [Mr A] knew where she was living, she decided in about 2013 to move out of her parents’ house and lived for short periods with various relatives and friends. In about late 2013 or early 2014 she moved in with an uncle, [Mr E], who was a retired police officer. [Mr E] lived about two hours away from [the applicant’s] parents. [Mr A] did not know she was there. From time to time, her parents came to visit and warned her that [Mr A] was continuing to make threats against her. However, [the applicant] did not believe that this arrangement was sustainable and was concerned that she was wearing out her welcome. At some point, [Mr E] told her that he and his family were moving back to [Town 1] and did not invite her to join them. At this point, she had decided to return to Australia. She made the arrangements with the assistance of her niece, [Ms F], who was living in Australia. [Ms F] paid for the travel and other arrangements. As noted above, [the applicant] arrived in Australia [in] March 2016 and made the protection visa application on 28 June 2016.
33.  	The Tribunal asked [the applicant] about her fear of returning to PNG.  She said that, from time to time, [Mr A] made threats to harm her to her parents. These threats were reported to her by her sisters, [Sister D] and [Sister C]. She said that [Mr A’s] ‘boys’ (street gang members) and fellow tribesman would harm or kill her even if [Mr A] was unable to. She says that she is able to rely on her parents, who are now old and with whom she has lost touch, and her siblings do not have the means to support and protect her. Her sister, [Sister D], to whom she is closest, has been abandoned by her husband and has no way to help her. [Sister C], is married to a member of the same wantok as [Mr A] and therefore [the applicant] would be easily found if she stayed with her. She told the Tribunal that if she had to return to PNG, it would be the same as digging her own grave.
34.  	[The applicant’s] evidence was consistent throughout with the account that she gave in her statutory declaration.
35.  	At the hearing on 8 July 2021, the Tribunal gave [the applicant] the opportunity to provide further evidence which, on the face of her statutory declaration, might be expected to exist. [The applicant] provided a medical report, a statutory declaration from [Sister C] dated 17 August 2021, and a document dated [in] June 2009, described by [the applicant] as a police report.
36.  	The medical report, dated 14 August 2021, details the scars and other wounds apparent to her medical practitioner on his examination of [the applicant]. The descriptions are consistent with [the applicant’s] account of the violence to which she was subjected by her husband.
37.  	[Sister A’s] statutory declaration provides brief details of her having witnessed [Mr A’s] violence against [the applicant] on numerous occasions. [Sister C] claims that [Mr A] is still looking for [the applicant] and that “he recently found out that she was in Australia and he is filled with rage, hatred and jealousy.” [Sister C] also claims that the police were unable or unwilling to assist. Although the statutory declaration is brief, there are enough details for it to be characterised as corroborative of [the applicant’s] broader claims.
38.  	The document dated [in] June 2009 is headed “Statement of [the applicant]” and purports to be signed and dated by [Police Officer B]. It is apparent from a cursory reading of its contents that it cannot be a genuine police record, referencing events that occurred well after [that date] June 2009. On questioning [the applicant] about this document, she said that she had asked [Sister D] to attempt to find the relevant police records and that this is what she received from her. She seemed genuinely surprised to learn that it was not the document she had asked [Sister D] to obtain for her and told the Tribunal that she was not sure of its contents. Having regard to the facts that English is [the applicant’s] third language and that she has been educated to the Australian equivalent of [grade], I am inclined to give her some credence. It appears to me that [Sister D], anxious to provide assistance to her sister, undertook a misconceived attempt to recreate the document [the applicant] was seeking. I give the document no weight, but I form no adverse inference against [the applicant] for passing it on to the Tribunal.
39.  	When asked to explain the delay in making the protection visa application, [the applicant] asked the Tribunal to consider the letter dated 22 May 2021, which was prepared with the assistance of [an agency]. She reiterated that her literacy and English language skills are extremely basic and that the preparation of a protection visa application was a daunting prospect.  She also said that she did not have the means to come back to Australia until her niece, [Ms F], came up with a solution. The letter reads:
3.	Delaying to applying for a protection visa is because of the following reasons:
	3.1	Mainly because of financial hardship to come back to Australia;
3.2	I had no job and my families were struggling themselves to live from day to day. No one could afford to help me as it is quite expensive to travel to Australia;
3.3	I was able to travel back to Australia because I received sponsorship to come;
3.4	I applied for the onshore protection visa after my arrival in Australia.
40.  	[The applicant] told the Tribunal she had lost contact with [Ms F].  This is unfortunate, because it seems [Ms F] could have provided valuable corroboration of [the applicant’s] account of the process by which she entered Australia and went about applying for the protection visa.  However, I find [the applicant’s] account, taking into consideration her background and language and literacy skills, to be plausible and the explanation of the delay to be reasonable.
Assessment of claims and evidence, and findings:
41.  	The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
42.  	The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
43.  	The Tribunal also accepts that ‘if the applicant's account appears credible, it should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been
obtained and checked and when the examiner is satisfied as to the applicant's general
credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
44.  	The Tribunal has carefully considered all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
45.  	The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.
46.  	However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.
47.  	The Tribunal considered country information it had obtained from the latest DFAT report on Papua New Guinea, and additional information, relevant to [the applicant’s] claims
Domestic violence against women in Papua New Guinea 
48.  	The information from the latest DFAT report on Papua New Guinea relevant to [the applicant’s] domestic claims is:
3.34 Levels 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. 
3.35 The 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. 
3.36 The 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. 
3.37 The 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. 
3.39 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. DFAT 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.
49.  	The Tribunal also considered country information it had obtained from external sources.
50.  	 Women in Papua New Guinea may be subject to official discrimination. Women in PNG face severe inequalities in all aspects of social, cultural, economic, and political life; gender discrimination exists ‘at all levels’.
51.  	Women in Papua New Guinea face very high levels of societal violence. Sexual harassment of women is widespread and severe. A 2019 Women, Peace, and Security index of women’s ‘wellbeing’ worldwide scored PNG 0.658 (1 being ideal) and ranked it 117 (of 167 countries).The PNG government in 2016 described gender-based violence as endemic, and stated that 2 in 3 women were said to be affected by it. A 2013 study predicted that 70 percent of women would experience rape and assault in their lifetime. However a 2014 report stated that data on violence in PNG was so ‘patchy and scarce’ that it was not possible to state whether gender-based violence had increased or decreased. In the largest survey of gender-based violence (GBV) (6176 incidents reported from May 2013 to November 2016 to seven non-governmental organisations (NGOs) in five provinces), 65.6 per cent of perpetrators were the intimate partner of the complainant; 78 per cent of complainants were female. The surveyed NGOs had most frequently provided counselling and mediation, occasionally refuge accommodation and repatriation; they referred to courts usually only cases unresolvable within the family or involving criminal physical and sexual violence. 40.1 per cent of 6063 of the incidents involved physical or sexual violence. The Papua New Guinea Demographic and Health Survey 2016-2018 found that, of 4873 women aged 15 to 49 surveyed, 56 per cent had experienced physical violence since the age of 15, and 28 per cent sexual violence. Physical violence was experienced by more divorced, separated or widowed women (experienced by 70 per cent) and currently-married women (63 per cent) than never-married women (30 per cent). 78 per cent of surveyed ever-married women who experienced physical violence and 77 per cent who experienced sexual violence, reported their current husband as its perpetrator. 66 per cent of never-married women who experienced sexual violence reported current or former boyfriends, and 6 per cent strangers, as its perpetrator. 647 cases of domestic violence were reported in Port Moresby in June 2020, according to the Police Minister. Sexual violence has been committed by police, including against women in detention.
52.  	Only a small proportion of women in Papua New Guinea who experience societal violence seek help from the police. The Papua New Guinea Demographic and Health Survey 2016-2018 found that 35 per cent of surveyed women who had experienced physical or sexual violence had sought help; most commonly seeking the help from their family (72 per cent had), and less commonly from their husband’s family (13 per cent), friends (11 per cent), neighbours (11 per cent), police (10 per cent), social work organisations (3 per cent) and doctors/medical personnel (3 per cent). 15 percent of surveyed women who had experienced both physical and sexual violence sought help from the police.
State protection 
53.  	The information from the latest DFAT report on Papua New Guinea on state protection relevant to the [the applicant’s] claims is:
Police
5.4 The Royal Papua New Guinea Constabulary (RPNGC) is responsible for maintaining internal security in all regions of the country. The Police Commissioner reports to the Minister for Police. Under the terms of the Bougainville Peace Agreement, the Autonomous Region of Bougainville (ARB) maintains its own police force, the Bougainville Police Service. While the ARB Minister for Police has authority to enforce local law, the RPNGC retains the authority to ensure that national law is enforced. In some areas of PNG, including Bougainville, supplementary policing is provided through an initiative known as the Community Auxiliary Police. The Police Act (1998) affords this force the same powers as the regular police, although the exercise of their powers is limited to the geographical area in which they are appointed. 
5.5 The PNG Community Perceptions Survey 2015 (see ‘Crime’) highlighted that the RPNGC was perceived very poorly in the PNG community. 70 per cent of those surveyed reported that police did not treat people fairly; 67 per cent reported that police did not treat people with respect; and 66 per cent reported that police were not honest. The survey also noted that focus groups raised gender as an issue, with women surveyed reporting disrespect, lack of action on complaints, and sexual aggression and violence (including rape by police and the exchange of sexual favours for better treatment). However, the report did highlight some evidence of positive improvements in Port Moresby and Lae, including greater visibility in these areas and an increase in people’s willingness to seek help from them.
Traditional Mediation Systems and Customary Law (Village Courts)
5.21 The PNG Community Perceptions Survey 2015 (see ‘Crime’ and ‘Police)’ found that the Village Court process was generally seen as important in resolving disputes. Of those surveyed who had used Village Courts in the past year, 83 per cent had had their matter resolved, and 72 per cent were partly or very satisfied with the process. However, there was a clear gender gap in satisfaction with village court outcomes, with 33 per cent of women being very satisfied as opposed to 46 per cent of men. Village Courts were perceived as being less effective in Port Moresby and Lae. 
5.22 Village Courts have largely succeeded in their goal of providing people with an opportunity for justice that they may not otherwise have been able to access. They also empower women to a certain extent. They have been criticised on occasion for overstepping their mark and for seeking to keep the peace rather than deliver justice, such as through dealing with sexual or domestic violence through reconciliation processes rather than referring them to District Courts, as required by law. 
54.  	The Tribunal also considered country information it had obtained from external sources.
55.  	Sexual violence has long been criminalised, and the Family Protection Act 2013 criminalised domestic violence and allowed victims to obtain protection orders; however, parliament only passed Regulations to implement the Act in May 2017 (see definitions). In October 2017 the National Capital District Family Sexual Violence Action Committee Secretariat revealed that 414 cases handled in 2016-2017 had resulted in 2 convictions; its Case Coordinator said most GBV cases were not prosecuted because police treated domestic violence and GBV as “accepted behaviour”. In October 2017 Prime Minister Peter O'Neill said that despite the law, his government could not stop violence against women without active community support. It was then being reported that police and prosecutors typically mandated mediation, compensation and reconciliation, and had rarely pursued investigations or laid criminal charges against family violence perpetrators.
56.  	The legislative reforms and policy developments in recent years to address family and sexual violence (FSV) have caused an increase in FSV offences’ volume, and proportion, at ‘every stage in the criminal justice system’. There were in 2020 family and sexual violence units in 18 of 22 provincial police headquarters to provide victims with protection, assistance through the judicial process, and medical care; and in some provinces police leadership improved services for victims of gender-based violence. The US Department of State stated that most of PNG lacks comprehensive services for victims of FSV. A 2020 Australian academic study reported that the specialist police unit set up to receive complaints of sexual violence in Port Moresby (Boroko Sexual Offences Squad (SOS)), averaged 27 complainants per month over the 19-month period January 2018-July 2019; 90 per cent of complainants were female, 74 per cent of whom were aged under 18 years. The Lae SOS averaged 13 complainants per month over a 6-year period, 93 per cent of them female and 69 per cent aged under 18. Serious cases are referred to the Office of the Public Prosecutor in Port Moresby’s specialist Family and Sexual Violence Offences unit, which had an equivalent number of acquittals or discontinuations to convictions for such offences. The study estimated that 6 per cent of complaints made to Port Moresby SOS reached the National Court, due in part to withdrawals and non-appearances by victims and witnesses for reasons including compensation payments on the perpetrator’s behalf, threats on the perpetrator’s behalf, and court waiting times and delays.
57.  	[The applicant’s] evidence during the hearing was consistent with her previous claims. Her evidence and the additional material she submitted largely addressed concerns raised by the delegate. The Tribunal noted the absence of some material that might have been expected and, as noted in paragraph 38 above, sought to clarify the provenance of the [June] 2009 document. The Tribunal gave detailed consideration to the reasons advanced by [the applicant] for the delay in making her protection application. [The applicant’s] evidence on these matters, while generally satisfactory, was not free from doubt. However, taking into account the passage of time and the difficulty [the applicant] has with written and oral communication in English, together with her honest and forthright demeanour while giving evidence, the Tribunal is prepared to give her the benefit of any doubts that it has. [The applicant’s] explanation as to why she might fear harm on return to PNG, despite the length of time since she last saw or heard from [Mr A] (namely, his continuing threats, the prevalent risk of violence associated with grudges propagated through the wantok system, and her description of the inability of her family to offer her protection), appear to the Tribunal to be credible.
58.  	In light of the country information above, which the Tribunal accepts, and [the applicant’s] evidence, which the Tribunal also accepts, the Tribunal accepts [the applicant’s] claims and submissions that she fears persecution as a member of a particular social group of separated Papua New Guinean women.
59.  	Accordingly, the Tribunal accepts that:
•	[the applicant] fears being persecuted for the reason of her membership of a particular social group; and
•	there is a real chance that, if she returned to PNG, she would be persecuted for her membership of that particular social group; and
•	the real chance of persecution that she fears involves serious harm and systematic and discriminatory conduct, and relates to all areas of PNG; and
•	her membership of the particular social group is the essential and significant reason for the persecution; and
•	there are no effective protection measures available to her in PNG; and
•	there are no reasonable steps which she could take to modify her behaviour so as to avoid the real chance of persecution.
60.  	The Tribunal accepts that:
•	the particular social group to which [the applicant] claims to belong is separated Papua New Guinean women; and
•	a characteristic is shared by each member of the group: namely, the female gender; and,
•	[the applicant] shares her female gender with the other members of the group; and the female gender of the applicant and other members of the group is innate, immutable, and distinguishes the group from society; and
•	the characteristic is not a fear of persecution.
61.  	In light of the country information available to the Tribunal, and the incidents of violence against women and separated women in PNG, the Tribunal finds that the real chance persecution relates to all areas of PNG.
62.  	The Tribunal notes that [the applicant] sought the intervention and protection of the police and other authority figures, either without avail or without lasting effect. Consistent with the country information, the Tribunal is satisfied that domestic violence is generally treated as a private matter and that prosecutions for domestic violence are rare, and that therefore effective protective measures are not available to the applicant in PNG.
63.  	[The applicant] gave evidence that the prospect of relocation was not feasible, given that [Mr A] has extensive links within her wantok and Port Moresby.  Without effective family protection, she would be in fear of violence and systematic discrimination wherever she went.  Her evidence was consistent with the country information in this respect.
64.  	Accordingly, the Tribunal finds that [the applicant] has a well-founded fear of persecution for reason of her being a member of a particular social group of separated Papua New Guinean women.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm?
65.  	As the Tribunal has determined that [the applicant] is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, there would be a real risk that she will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG. 
Conclusion: Refugee Criterion
66.  	Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is real chance that, in the reasonably foreseeable future, [the applicant] will be persecuted for the reason of her being a member of a particular social group of separated Papua New Guinean women. Her fear of persecution is well-founded as required by s.5J of the Act and therefore she is a refugee within the meaning of s.36(2)(a).
Conclusion: Complementary Protection
67.  	As the Tribunal has determined that [the applicant] is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, there would be a real risk that she would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to PNG.
Overall Conclusion:
68.  	For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
decision
69.  	The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

James Lambie
Senior Member

Attachment  -  Extract from Migration Act 1958
5 (1)	Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)	severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)	pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)	that is not inconsistent with Article 7 of the Covenant; or
(d)	arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)	that is not inconsistent with Article 7 of the Covenant; or
(b)	that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)	for the purpose of obtaining from the person or from a third person information or a confession; or
(b)	for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)	for the purpose of intimidating or coercing the person or a third person; or
(d)	for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)	for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country,  in relation to a non-citizen, means:
(a)	a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)	if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H	Meaning of refugee
(1)	For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)	in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)	in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:	For the meaning of well-founded fear of persecution, see section 5J.
…
5J	Meaning of well-founded fear of persecution
(1)	For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)	the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)	there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)	the real chance of persecution relates to all areas of a receiving country.
Note:	For membership of a particular social group, see sections 5K and 5L.
(2)	A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:	For effective protection measures, see section 5LA.
(3)	A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)	conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)	conceal an innate or immutable characteristic of the person; or
(c)	without limiting paragraph (a) or (b), require the person to do any of the following:
(i)	alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)	conceal his or her true race, ethnicity, nationality or country of origin;
(iii)	alter his or her political beliefs or conceal his or her true political beliefs;
(iv)	conceal a physical, psychological or intellectual disability;
(v)	enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)	alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)	If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)	that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)	the persecution must involve serious harm to the person; and
(c)	the persecution must involve systematic and discriminatory conduct.
(5)	Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)	a threat to the person’s life or liberty;
(b)	significant physical harassment of the person;
(c)	significant physical ill‑treatment of the person;
(d)	significant economic hardship that threatens the person’s capacity to subsist;
(e)	denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)	denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)	In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K	Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)	disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)	disregard any fear of persecution, or any persecution, that:
(i)	the first person has ever experienced; or
(ii)	any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:	Section 5G may be relevant for determining family relationships for the purposes of this section.
5L	Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)	a characteristic is shared by each member of the group; and
(b)	the person shares, or is perceived as sharing, the characteristic; and
(c)	any of the following apply:
(i)	the characteristic is an innate or immutable characteristic;
(ii)	the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)	the characteristic distinguishes the group from society; and
(d)	the characteristic is not a fear of persecution.
5LA	Effective protection measures
(1)	For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)	protection against persecution could be provided to the person by:
(i)	the relevant State; or
(ii)	a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)	the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)	A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)	the person can access the protection; and
(b)	the protection is durable; and
(c)	in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36	Protection visas – criteria provided for by this Act
…
(2)	A criterion for a protection visa is that the applicant for the visa is:
(a)	a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)	a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)	a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)	is mentioned in paragraph (a); and
(ii)	holds a protection visa of the same class as that applied for by the applicant; or
(c)	a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)	is mentioned in paragraph (aa); and
(ii)	holds a protection visa of the same class as that applied for by the applicant.
(2A)	A non‑citizen will suffer significant harm if:
(a)	the non‑citizen will be arbitrarily deprived of his or her life; or
(b)	the death penalty will be carried out on the non‑citizen; or
(c)	the non‑citizen will be subjected to torture; or
(d)	the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)	the non‑citizen will be subjected to degrading treatment or punishment.
(2B)	However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)	it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)	the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)	the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…