1500508 (Refugee)

[2018] AATA 2164

1500508 (Refugee) [2018] AATA 2164 (6 March 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500508

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Sean Baker

DATE OF DECISION:  6 March 2018

DATE CORRIGENDUM SIGNED:                2 July 2018

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. The words under paragraph 20 should be replaced with:

   “At the hearing the applicant also referred to the remaining press articles he had provided, raising issues and concerns with the 2017 election. I asked him how these related to his claim and he said that the current political elite continue to appoint the army and police who are protecting the illegal settlers and preventing his family from resolving the conflict, so he thought it was important that the elections are conducted fairly and properly. He said that the elections are rigged and that they used the army and police to rig the elections. He said that because [Relative 2] is anti-corruption he was a high target for the political establishment at the moment.”

2. The words under paragraph 29 should be replaced with:

   “Rather, I have looked at the other findings I have made above, that he has not been harmed in connection to the land dispute, that the applicant’s family have not taken legal action against the settlers, that his [relatives] continue to live in [Village 1], and that [Relative 2] has not been harmed for any reason, and therefore my reasoning that there is not more than a remote chance that he would be harmed for any reason connected to the land dispute if he returned to [Village 1] or Port Moresby, and that the applicant would not be harmed for reasons of his political activities or his association with [Relative 2]. I find therefore that there is no real risk of the applicant suffering significant harm for these reasons. I further find on the basis of my findings above that there is no real risk he would suffer significant harm because of his [medical condition] and [permanent injury].”

   Sean Baker
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   CASE NUMBER:  1500508

   COUNTRY OF REFERENCE:                  Papua New Guinea

   MEMBER:Sean Baker

   DATE:6 March 2018

   PLACE OF DECISION:  Melbourne

   DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Statement made on 06 March 2018 at 5:51pm

   CATCHWORDS
   Refugee – Protection Visa – Papua New Guinea – Land disputes – Death of relatives – Relatives residing safely in home town – No real risk of harm – Decision under review affirmed

   LEGISLATION
   Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
   Migration Regulations 1994 (Cth), Schedule 2

   CASES
   MIEA v Guo (1997) 191 CLR 559 at 572

   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

3. [The applicant] is a [age] year old citizen of Papua New Guinea (PNG) who was born in [Village 1], [Province 1]. He fears harm on return to PNG because his family have been in a dispute with illegal settlers on his family land, which resulted in [Relative 1] being killed by the settlers in [a particular year]. He also fears generalised violence.

   2.    The applicant applied for the visa on 19 November 2013 and the delegate refused to grant the visa on 11 December 2014. The delegate refused the application on the basis that the applicant’s claims were vague and unsubstantiated, he had chosen not to attend an interview, and had delayed seeking protection. A copy of the delegate’s decision was provided by the applicant to the Tribunal.

   3.    A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) into account to the extent that they are relevant. 

   4.    The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in PNG, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Identity and nationality

   5.    To the Department, the applicant provided a copy of his Papua New Guinean passport. The delegate accepted the applicant was who he claimed to be. On the evidence before me I accept that the applicant is who he claims to be and is a national of Papua New Guinea, also his receiving country.

   6.    There is no evidence before me to indicate that the applicant has a right to enter and reside in a third country. At hearing he indicated he did not have such a right. On the evidence before me I find that the applicant does not have a right to enter and reside in a third country.

   The applicant’s claims and evidence

   7.    At the hearing the applicant provided a number of articles from Papua New Guinean news sources. These indicate that in [a particular year], the applicant’s [relative], [Relative 1], was [killed] in their home village of [Village 1] in a robbery committed by illegal settlers, and in response, villagers associated with [Relative 2] [destroyed] some of the illegal settlers houses.[1] There are reports that [authorities] intervened but these claims were denied by the [government], and also by [Relative 2].[2] A report also indicates that the land dispute was ongoing at the time of [the applicant’s relative’s death].[3]

   [1] [Source deleted].

   [2] [Source deleted].

   [3] [Source deleted].

   8.    Having considered the information, I find that it is credible that the applicant’s claims about a land dispute in his tribal homeland are at least partially correct. The [sources] contain some conflicting information but I am willing to accept that:

   ·     There has been a land dispute between villagers associated with the applicant’s family and illegal settlers occupying land associated with or owned by his family;

   ·     [Relative 1] was [killed] in [a particular year] in a robbery which I am prepared to accept may have also been motivated by the animosity between the villagers and settlers. However, I do not accept that those responsible for [Relative 1]’s murder were arrested but then allowed to go free – the [reports] do not indicate this and nor has the applicant been able to substantiate this in his evidence.

   9.    I also accept that the [authorities] took a role in the reprisals after the death of [Relative 1], where villagers associated with the applicant’s family [destroyed] huts of the settlers, but I find that the claim that the [authorities] have taken one side or the other does not appear borne out when considering the reports, which tend to indicate the [authorities] took a passive role and took no action towards either side. Whilst in one report, [Relative 2] is quoted as saying that the [authorities] are associated with the settlers, he is quoted in a later [report] as saying that the [authorities] acted appropriately and did not get involved in the conflict. I do not accept that [Relative 2] made these comments from ‘political correctness’ as claimed by the applicant at hearing – [Relative 2] is described as a prominent [Occupation 1][4] and the applicant said he had been [in a particular senior position] and ran for [a particular governmental position in a particular year], which I find indicates he holds a position of some power and influence in PNG and I do not accept that [Relative 2] would have felt compelled to make the statements he is quoted as saying if they were not true.

   [4] [Source deleted].

   10.      I note also that the applicant [relatives] continue to live in [Village 1]. When asked if they had had any problems, the applicant said [Relative 3] had been attacked by the settlers in 2015, but could not provide clear details about the attack. He said he thought the attack related to the ongoing conflict but was unable to explain why. He said he thought [Relative 3] may have a police report and that he may be able to provide this. Despite being given time to provide this he has not done so, nor explained why he has not. In the post hearing submission he said that the amount of time was insufficient and that there were ‘various reasons’ that made it difficult for him to obtain them. He did not explain what these reasons were, ask for further time, and at the time of decision he has not provided the report or any further explanation. He did not indicate that his [other relatives] had been harmed, but said generally that his family had been dispersed by the conflict.

   11.      The applicant also claimed that he was attacked and robbed in 2008 in [Village 1], he could not identify the perpetrators and had made a police report that he again undertook to provide but had not at the time of decision, providing the same explanation in the post hearing submission as discussed above.

   12.      I have considerable doubts about whether the land dispute is ongoing, given the lack of recent information the applicant has been able to provide, either in his evidence at the hearing, or any documentary or press reports on the land dispute. The applicant claims that his family have taken legal action against the settlers, yet he has not been able to provide any court documents or other evidence of this legal action or an ongoing land dispute. I have real doubts that the attack on the applicant in 2008 and the attack on [Relative 3] in 2015 had any connection with the land dispute. I am not satisfied that the applicant has been able to establish that the land dispute is ongoing or that he or his family have been harmed as a result of the dispute other than the [death] of [Relative 1] [a number of] years ago which I am prepared to accept had some link to the dispute. I accept that land disputes can go on for many many years in Papua New Guinea but the applicant has been unable to establish this and did not say at the hearing that there had been recent incidents and I note that his [relatives] remain in [Village 1].

   Delay

   13.      Further compounding my concerns is the issue of delay in this case. The applicant’s migration history is set out in the delegate’s decision which the applicant provided. It indicates that he arrived in Australia for the first time in February 2003 as the holder of a student visa. He held a further student visa that was extended until his return to PNG in November 2005. He then returned to Australia on another student visa in March 2009. He lodged a further student visa application but this was refused in April 2014. Prior to this refusal he lodged a medical treatment visa on 2 April 2012, which he withdrew on 4 April 2012. He applied for a protection visa on 19 November 2013.

   14.      As the delegate was, I am concerned about the applicant’s migration history. He has held a series of visas, and remained in Australia for a considerable period of time before applying for protection. I discussed this with the applicant at the hearing. I explained that his visa history might tend to suggest that he was attempting to remain in Australia by whatever means he could.

   15.      The applicant explained his history. He had been studying in Australia, and was studying [a particular course] at [a particular institution] but due to stress and anxiety he developed [a particular medical condition] which led to [a subsequent medical condition]. He was admitted to [a particular hospital] in April 2013 for [a duration] and he was continuing to receive treatment. He said the symptoms were lesser but he still had [a particular medical condition]. He said that he had applied for the medical treatment visa at around this time as he wanted to continue to get treatment while he figured out his visa situation but at the same time he was receiving news about the situation for his family back home and the conflict that was unfolding back home. His family advised him that it was not safe to return. I noted he had withdrawn his medical treatment visa two days later, on 4 April 2012 and asked why this was. He said he still had his student bridging visa and he felt he should be applying for a student visa. However, he then applied, in November 2013, for this protection visa.

   16.      When asked why he had not applied for protection earlier he said that he did not know about protection, that after learning about what happened and the situation back home and the advice from his family that he should not return, he considered his only option at the time was to remain on a student visa until he could complete studies and meet the requirements to remain in Australia. I noted that he had applied for a number of student visas, had extended those visas, and applied for a medical treatment visa, so he appeared to be aware there were different types of visas and could have found out about protection earlier. He said he did not know and the plan was to continue on a student visa until he completed his studies, and that a friend had told him about protection. He said he had not attended the Departmental interview as he was going through medical issues, financial stress and at one point was homeless, so he did not prepare and attend the interview. I asked if he had tried to reschedule the interview and he said he was not in a state to do so and then received the refusal a few days later. In his post hearing submission he did not provide further information to support his reasons for the delay, giving only vague information that it was because of the events that transpired in his home involving his immediate family, the details of which we discussed at the hearing.

   17.      I have carefully considered the applicants explanations but I do not accept them. [Relative 1] was [killed] in [a particular year], which the applicant claims is the significant event leading him to fear harm on return, but he did not seek protection for [a number of] years after this, nor has he been able to establish that there was any further action that impelled him to make his protection application at that time. The applicant is tertiary educated, has lived in Australia for approximately ten years and has a very good level of English. He has held a series of visas and been able to extend his student visas and seek a medical treatment visa. I find that the applicant would have had the skills to seek protection earlier than November 2013 if he had needed to. I have taken account of his medical issues, possible financial stress and his claim that he was homeless at one point. Even taking account of all these things, I find that there was a significant delay in his applying for protection for which the applicant has not been able to proffer sufficient reasons. I find that this delay, and his migration history, as I explained to him, cast doubt on the immediacy and gravity of his claimed fears.

   18.      This leads me to doubt that the applicant does fear harm on return for the reasons he has claimed.  It further leads me to have concerns with his credibility, because I do not accept that he has been truthful about his reasons for not applying earlier.

   Further claims

   19.      At the hearing, and particularly in the post hearing submission, the applicant has also claimed that he fears harm on the basis of [Relative 2]’s political profile. He claims [Relative 2] is important. He claims that [Relative 2] is an anti-corruption activist and outspoken about systemic issues. He said there would be difficulties for him from [Relative 2] running for [a particular governmental position], as he fought against corruption. He claims in the post hearing submission that this has made [Relative 2] a target for attacks, threats and intimidation, but he has not provided any detailed information or materials to indicate that [Relative 2] has been threatened or harmed. Whilst I accept that [Relative 2] is a prominent [Occupation 1], ran [for a particular governmental position], and was [a particular senior position] in [a particular year], and could therefore be considered of some importance in PNG, I am less willing to accept that he has been an anti-corruption activist or outspoken about systemic issues or is considered anti-government. The applicant has not provided detailed information in his oral evidence, nor has he provided any materials that would establish this. He has not provided anything to indicate that [Relative 2] has been threatened or harmed for any reason.

   20.      At the hearing the applicant also referred to the remaining press articles he had provided, raising issues and concerns with the 2017 election. I asked him how these related to his claim and he said that the current political elite continue to appoint the army and police who are protecting the illegal settlers and preventing his family from resolving the conflict, so he thought it was important that the elections are conducted fairly and properly. He sad

   21.      In the post hearing submission the applicant indicates that here in Australia he has gone through serious medical issues - as well as his [particular medical condition] [he] was injured in a [dispute] which caused an injury [and] left him with [a permanent injury], and with these serious medical issues he feels he is not able and well to defend himself or to be completely aware of his surroundings if he was under threat of attack. At the time of his protection application the applicant claimed that sorcery was a common practice in PNG and because the doctors were unable to reveal what was wrong with him when he had medical tests in Australia, he believes he has been targeted. I find that this claim is pure conjecture.[5] I do not accept that his medical problems have been caused by sorcery, nor that his medical problems are linked to the land dispute or any other issue in PNG.

   [5] MIEA v Guo (1997) 191 CLR 559 at 572.

   22.      On the basis of the above reasoning I make the following findings:

   ·     There has been a land dispute between the applicant’s family and illegal settlers in [Village 1], [Province 1];

   ·     The applicant’s [relative], [Relative 1], was killed in [a particular year] in a robbery that I accept was related to this land dispute;

   ·     The army and/or police did not get involved in the ensuing reprisal where villagers associated with the applicant’s family [destroyed] the huts of settlers;

   ·     Those responsible for [Relative 1]’s murder were not arrested and later allowed to go free;

   ·     The settlers do not have political or military power or influence;

   ·     I am prepared to accept that the applicant was attacked and robbed in 2008 but I do not accept that it was connected with the land dispute given the applicant’s vague and undetailed evidence on this and my concerns above. He indicated he may be able to provide a police report to substantiate this, was given time to do so, but has not done so;

   ·     I am also prepared to accept that [Relative 3] was harmed in some manner in 2015, but I do not accept that this was an attack or associated in any way with the land dispute, given his vague and undetailed evidence on this and my concerns above, and despite indicating he may be able to provide a police report to substantiate this, and having been given time to do so, he has not;

   ·     [Relative 2] is a prominent [Occupation 1] and ran [a particular governmental position] in 2017, but for the reasons above, I do not accept that he has been threatened, intimidated or harmed in any way for any reason.

   ·     The applicant’s [relatives] continue to live in [Village 1];

   ·     Given the paucity of evidence I do not accept that the applicant’s family have taken legal action against the settlers. The applicant’s evidence on this was vague and undetailed. When pushed on whether he could provide court or other documents to indicate the land dispute was ongoing he said he may not be able to because [Relative 2] was not in a position of political power. I do not accept this as an explanation for why the applicant could not provide some court or other legal documentation to establish that there was or is legal action ongoing. Given this and my concerns above I reject his claim that his family have taken or are undertaking legal action against the settlers;

   ·     I find that the applicant delayed applying for protection and that he has been unable to adequately explain this delay. He has not explained why, given [Relative 1] was killed in [a particular year] as a result of the land dispute, he did not apply until November 2013;

   ·     I accept that [Relative 2] is a prominent [Occupation 1], but I do not accept that he has a profile as an anti-corruption activist or is considered anti-government;

   ·     I accept that there are significant issues with PNGs elections but I do not accept that this has any direct impact on the applicant;

   ·     I find that the applicant worked in [Village 1] and then in Port Moresby when in PNG, and has worked in Australia;

   ·     I accept that the applicant has [a particular medical condition] and that he has [a permanent injury]. I do not accept that these health conditions were caused by or connected in any way to his claims, I specifically reject his early claim that his health conditions are somehow related to sorcery, and reject that his health conditions evidence that he has been targeted for sorcery or that there is a threat on his life;

   23.      Taking into account all of the above information, his vague and undetailed claims and my concerns, given that [Relative 1] was murdered in [a particular year] and I have not accepted [Relative 3]’s harm in 2015 had anything to do with the land dispute, given that his [relatives] remain in [Village 1], and his inability to provide further evidence, nor to explain why he was unable to do so in his post hearing submission, I have reached a positive state of disbelief that the land dispute is ongoing.

   Does the applicant have a well-founded fear of harm on return for a Convention reason?

   24.      I have assessed the applicant’s claims as accepted and set out above. I do not accept that the applicant has been harmed in the past for a Convention reason – either as a member of his family, as someone involved in a land dispute, for his imputed political opinion as [Relative 2]’s son or for any other Convention reason.

   25.      I find that the applicant could return to Papua New Guinea. I do not accept that the land dispute is ongoing and I therefore do not accept that there is a chance more than a remote chance that he would be harmed for any reason connected to the land dispute if he returned to [Village 1], nor do I accept that he would be harmed in Port Moresby by settlers or their wantok on the basis of the land dispute. I have not accepted that [Relative 2] has been harmed or threatened for his political activities, and I do not accept that the applicant would be harmed for reasons of his political activities or his association with [Relative 2]. Whilst I accept that the applicant would face practical difficulties in returning, including because of his [medical conditions], I do not accept that he would be unable to find shelter and work or assistance on return, either in Port Moresby where he most recently lived, or in [Village 1].

   26.      This is because of what I can discern of the applicant’s wantok or social kinship.[6] The applicant has wantok, or social and family ties, in both Port Moresby and [Village 1]. Further, I find [Relative 2] is a man of some importance and that this would have a protective effect under the wantok system. Whilst the applicant said that [Relative 2] had remarried and that he could not stay with [Relative 2], I find that [Relative 2] would assist the applicant to re-establish himself if he chose to return to Port Moresby, or that the applicant could return to [Village 1] and be assisted by his relatives there. I accept that the applicant has remained in Australia for many years, and does not wish to return, but I find that he would return having worked in Papua New guinea previously and in Australia, and with social support which would allow him to live in Port Moresby or [Village 1].

   [6] DFAT, Department of Foreign Affairs and Trade Country Information Report: Papua New Guinea, 10 February 2017, p. 3.

   27.       I do not accept that there is a real chance, as opposed to one that is remote, that he will be harmed for reasons of membership of his family, someone involved in a land dispute or imputed political opinion as [Relative 2]’s son or for any other reason by settlers, the authorities, or anyone else on return to Papua New Guinea, now or in the reasonably foreseeable future.

   Are there substantial grounds to believe there is a real risk the applicant will suffer significant harm?

   28.      I have considered whether there are substantial grounds for believing that the applicant will face a real risk of significant harm on being returned to his receiving country of Papua New Guinea. I have found above that there is no real chance that he will be seriously harmed on return in the reasonably foreseeable future for any of the reasons claimed or any other reason apparent. Whilst the above reasoning relies in part on his delay in applying, and my assessment of the immediacy and gravity of his claimed fears, I have not relied on this limb of my reasoning when considering if he will suffer significant harm.

   29.      Rather, I have looked at the other findings I have made above, and my finding that the land dispute is not ongoing, that [Relative 2] has not been harmed for any reason, and therefore my reasoning that the applicant would not

   30.      At hearing I asked the applicant if he feared harm for any other reason and he said he feared harm from criminal and generalised violence in Papua New Guinea. It is the case that levels of violence in Papua New Guinea are very high. Much of the reporting focuses on violence against women and children, police brutality, or intertribal violence.[7] However, there are also reports that the overall crime rate is extremely high and characterised by violence, crimes occur randomly and are particularly prevalent in Port Moresby and other major cities, settlements are often the most dangerous.[8] I accept that there is a risk that the applicant may be affected by generalised violence if he returns to Port Moresby or [Village 1].

   [7] United States Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016: Papua New Guinea, Human Rights Watch, World Report 2017: Papua New Guinea,

   [8] DFAT, Department of Foreign Affairs and Trade Country Information Report: Papua New Guinea, 10 February 2017, 2.35.

   31. However, for the following reasons, I do not accept that this amounts to a real risk. There is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the risk is not faced by the non-citizen personally but is faced by the population of the country generally: s.36(2B)(c). I find in this case that the harm feared by the applicant is general and faced by all persons in Papua New Guinea – indeed; the country information indicates that women and children disproportionately face this harm rather than adult males such as the applicant. I have considered whether anything I have accepted of his claims would lead to him facing a personal risk of harm in the context of Papua New Guinea but I do not believe so. I have considered that he would return with [a particular medical condition] and with [a permanent injury] but I do not accept that this would lead to him being personally targeted for harm or increase his risk of harm on the evidence before me – I do not accept that these health issues would create a situation where he is exposed to or selected for violence above anyone else in PNG, nor can I envisage a situation where that would occur. I do not accept that his family, the past but not current land dispute or anything else I have accepted of his claims would lead to him begin at personal, as opposed to a general, risk of harm. I find therefore that there is taken not to be a real risk as the harm claimed is faced, I find, by the population of the country generally.

   32.       I have considered the claims of harm, individually and cumulatively, of the applicant. I find that the applicant does not face a real risk of significant harm in Papua New Guinea from settlers, the authorities, or anyone else for any of the reasons identified above or any other reasons discernible.

   33.      Therefore, having regard to these findings and the findings above, both individually and cumulatively, I find that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm upon being removed from Australia to Papua New Guinea.

   Conclusions

   34. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   35. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   36. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

   37.      The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Sean Baker
   Member

   
   

   ATTACHMENT A - RELEVANT LAW

   1.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.

   2.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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   3.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   4.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’).

   5.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

   Credibility

   6.As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

   ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

   7.As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

   ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

   8.If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.