1509970 (Refugee)

[2017] AATA 3022

1509970 (Refugee) [2017] AATA 3022 (21 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509970

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:David McCulloch

DATE:21 December 2017

PLACE OF DECISION:  Perth

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

Statement made on 21 December 2017 at 9:18am

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Particular social group – Homosexuals – Harassment from ‘rascals’ – Threats of kidnapping – Credibility issues – Return from a wealthy country

LEGISLATION
Migration Act 1958, ss 36, 65, 424AA, 438, 499
Migration Regulations 1994 Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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, who claims to be a citizen of Papua New Guinea, applied for the visa [in] November 2014, and the delegate refused to grant the visa [in] June 2015.

3. The applicant appeared before the Tribunal on 28 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A].  [Mr A] was also the applicant’s authorised recipient and was nominated as his representative, although he was not a registered migration agent. [Mr A] is said to be the applicant’s same-sex partner.

4. The first Tribunal hearing commenced via video link, with the applicant in [Town 1], and the Tribunal Member in Sydney, NSW.  There was a sound delay and sound gaps in the transmission which made communication by video link difficult. The Tribunal sought to maintain the video link with a telephone connection, but this did not improve communication. As a result, the hearing progressed by telephone. Although it would have been preferable for the hearing to have been conducted by video link, where participants were visible to each other, the Tribunal is satisfied that the parties were able to adequately communicate via telephone.

5. The Tribunal indicated at the conclusion of the first hearing that it intended to conduct a second hearing, giving the applicant the opportunity to provide supporting statements attesting that the applicant and [Mr A] were in a genuine relationship, and to further explore the relationship. Supporting statements were subsequently provided, which are detailed further below.

6. The Tribunal scheduled a second hearing for 20 September 2017. On the day before the hearing, a postponement was requested on the basis of illness of the applicant, medical evidence of which was subsequently provided. The hearing was postponed to 29 November 2017.

7. In advance of the hearing scheduled for 20 September 2017, the applicant was advised by the Tribunal that it would be very useful to the Tribunal if those individuals who had provided supporting statements attesting to the applicant being in a genuine same-sex relationship, were available to give evidence to the Tribunal at the second hearing. [Mr A] referred to potential logistical issues in this respect. Therefore, the rescheduling of the hearing to November 2017 also provided an opportunity for the applicant to make arrangements for those providing the supporting statements to be available to give evidence to the Tribunal.

8. The hearing was rescheduled for 29 November 2017. As before, video communication became unstable during the first part of the hearing, resulting in the Tribunal continuing the hearing by telephone. The Tribunal is satisfied that the method of the hearing facilitated appropriate communication. The Tribunal was assisted in this hearing with an interpreter in the Tok Pisin language.

9. The applicant indicated to the Tribunal in the second hearing that he had anticipated that the two individuals who had provided supporting evidence as to the applicant’s relationship with [Mr A] were to be attending the hearing. A third individual was to be giving evidence by telephone, but one of the witnesses who was to attend in person had the telephone number for that witness. In the hearing, the applicant indicated that he was meant to be meeting the two individuals at the courthouse in the town prior to the hearing, prior to attending the hearing, but they were not there. The applicant indicated that he phoned them, but there was no answer.

10. The Tribunal asked the applicant why [Mr A] was not in attendance. The applicant indicated that he was dealing with family issues [interstate], but he would be available to answer any questions by telephone.

11. The Tribunal made an assessment at the end of the second Tribunal hearing, including based on its assessment at that point of the cumulative impact of the various credibility concerns identified in this decision, that it would not provide any further opportunity for witnesses to provide oral evidence on behalf of the applicant. This is discussed further below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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).

14. 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.

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

16. 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 and Border Protection (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Report – Papua New Guinea, 17 February 2017.

17. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

18. The delegate’s decision indicates that the applicant arrived on a [temporary] visa [in] January 2013. The applicant remained in Australia as an unlawful non-citizen after that visa expired [in] February 2013. [In] October 2014, the applicant presented to immigration officers and was granted a bridging visa which was valid until [a date in] November 2014. On [that date] the applicant lodged the application for the protection visa.

19. The delegate’s decision indicates that the applicant has stated that he previously travelled to Australia in [two specified years]. Departmental records confirm that the applicant entered Australia [in] August 2012 before departing [in] November 2012. The applicant has also entered Australia on a passport in the name of [Alias].  The applicant first arrived on this passport on [date], departing [after 6 months]. The applicant entered Australia for the second time on this passport [in] March 2009, departing [in] November 2010.

20. The application forms for the protection visa indicate the following. The applicant was born on [date] in the town of [Town 2], [District 1], PNG.  He is of the Catholic religion. The applicant was married on [date], in [Town 2]. The applicant speaks, reads and writes Pidgin English and speaks and reads English. The applicant lists [number] years of education ending in [year], undertaken at [District 2]. The applicant lists a qualification: ‘correspondence [occupation 1] in [an Australian city] in [earlier year range]’. The applicant lists his occupation as [occupation 1]. The applicant provides no details of past employment.

21. The applicant indicates in his protection visa application forms that he left PNG because he was harassed by ‘rascals’ and could not lead his normal life. He decided to leave the country to help his family. The applicant indicates that the rascals stopped him on the road while to sell products in the market and beat him often. The applicant indicates that the situation is getting worse. People are being harassed and not able to get on with their normal lives. The applicant indicates that he is getting more information from home. He indicates that he is [an occupation 2], which is the only way to support his family.

22. In the interview with the delegate, the applicant reiterated claims on the basis of harassment from ‘rascals’.  The applicant claimed that he also faces harm in PNG because he will be perceived to have money, given his time in Australia.

23. [In] June 2015, two days after the delegate made the decision to refuse the visa, the applicant wrote to the Department indicating that he was authorising [Mr A] to help and speak on the applicant’s behalf as the applicant was having problems understanding grammatical English. It is indicated that information on the initial application may be incorrect because, at the time, the applicant did not understand grammatical English. Reference is made to the applicant being under duress at the time of the interview because of the death of his son who passed away the night before. The applicant made reference to this in the interview. It is indicated that some of the information may be incorrect because the applicant had not properly understood.

24. At the first Tribunal hearing, the applicant indicated that claims of harm made on the basis of fear of ‘rascals’ were not true and the applicant feared harm on the basis that he was homosexual. Provided to the Tribunal in advance of the hearing was a [state] Relationship Certificate dated [in] October 2015 between the applicant and [Mr A].

25. As stated above, at the end of the first hearing, the Tribunal indicated that it would be adjourning the hearing to a later date.  It requested the applicant to provide any additional evidence as to the genuineness of his relationship with [Mr A], such as by way of supporting statements from individuals who are aware of the relationship. In response, two Statutory Declarations dated [in] July 2017 were provided by [Mr B] and [Ms C], of [another town] and [Town 1], respectively.

26. [Mr B] indicates that he has known [Mr A] for over eight years. After they met, [Mr A] confided that he was bisexual. Later, [Mr B] met the applicant who had just moved into the home of [Mr A], where they lived together as a same-sex couple. They still live together as a same-sex couple and [Mr B] can personally attest to this as he regularly visits them at their place of residence.

27. [Ms C] indicates that she has known the applicant for about four years. She met the applicant when he was living with [Mr A]. They cohabited as a same-sex couple. [Ms C] visits them at their place of residence.

28. In the submission provided following the first hearing, the fear that the applicant has had of revealing his sexuality is highlighted. A report of the Australian Human Rights Commission dated December 2014 is provided as indicating that almost half of LGBT people hide their sexual orientation or gender identity.

    Hearing, credibility, findings and assessment

29. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

30. The Tribunal is satisfied that the applicant is a citizen of PNG and accordingly his claims will be assessed against PNG.

31. The Tribunal explored with the applicant in the first Tribunal hearing claims that he is homosexual. The applicant indicated that he realised at a young age that he was gay, but this was taboo in PNG, and he had to keep this hidden. Prior to the applicant being married at the age of [age], he would travel to the [local town] where he would meet men on the street and have hidden and casual encounters. The applicant indicated that, after he got married, throughout the course of his marriage, he did not have sexual encounters with men. The Tribunal asked the applicant how he managed not to act out his inclinations and as to his attitude towards sexual activity with his wife. The applicant indicated that he did not have sexual relationships with men during his marriage because he did not want to be disloyal to his wife. He indicated the cultural importance of having children. The applicant indicated that he had [number] children, the first in [year] and the last in [year]. The applicant indicated that he divorced his wife in [year].

32. The applicant was asked about his sexual activity during his visits to Australia. Initially, the applicant indicated that there was only one occasion in which he had a sexual encounter with a man on his various visits to Australia, and that was during his visit in [year, prior to marriage], in which he met a man at a venue in [city] and they had two sexual encounters with him. When the Tribunal referred to later visits to Australia, the applicant said that, in fact, he had had casual encounters with two different men on his visits to Australia (prior to his last visit). The second occasion was on his visit in [year] when he met a man in a bar in [City 1] and they had two sexual encounters. When the Tribunal asked the applicant about subsequent visits, the applicant changed his evidence again to say that he had, in fact, had three encounters with men during his various trips to [City 1], with the third encounter being in 2012 when he met a man at a venue in [Suburb 1] and they had one sexual encounter.

33. The Tribunal explored with the applicant his sexual activity after last arriving in Australia in 2013. The applicant indicated that he was living in [City 1] for a month or so when he first arrived but did not engage in any relationships with men.

34. The Tribunal asked the applicant why his same-sex encounters have been so limited in Australia when he had the relative freedom to express his sexuality. The applicant referred to being scared and that it was not activity he could undertake in PNG. The applicant also indicated he was fearful that others from PNG would find out.

35. The applicant indicated that he met [Mr A] in [Town 1] [in] March 2013. He was a friend of the wife of a friend of the applicant’s who was living in [Town 1].  They went to [Mr A’s] home.  A week later the applicant returned alone and he and [Mr A] were drinking and then had a sexual encounter. The applicant said that from that visit, the applicant has been living with [Mr A] and they have been in a relationship.

36. The applicant indicated that his reason for failing to originally make a claim on the basis of being gay and to make a false claim was due to the intensely personal nature of his sexuality and a reluctance to reveal this.

37. The Tribunal has a number of credibility concerns with the applicant’s claims to be homosexual and to be in a genuine relationship with [Mr A].

38. Firstly, the fact of the applicant making false claims for protection in November 2014, 20 months after arriving in Australia, most of which was spent as an unlawful non-citizen, and failing to reveal his true claims at a much earlier stage is undermining the truth of the applicant’s claims, particularly in light of the fact that [Mr A] would have been in a position to support the applicant in making truthful claims from the commencement of their relationship in March 2013.

39. The applicant has also provided inconsistent evidence as to the person who assisted him in making the initial claims, and whether or not [Mr A] knew that the applicant was making false claims, and whether [Mr A] argued at an early stage that the applicant should make his claim based on his sexuality.

40. The Tribunal notes that, in the interview with the delegate, the applicant was asked if the information in the protection visa application forms was correct and if there was anything that he wanted to change. The applicant indicated that the information was correct and reflected his full claims. The applicant also indicated that his friend filled out the form for him, and the applicant read the form. As indicated, the application form indicates that the applicant reads English. In addition to the false information in the application form, the applicant proceeded to give false evidence under oath in the interview with the delegate.

41. The Tribunal can accept that the applicant could well have considerable reluctance to reveal his sexuality, given the taboo in PNG around homosexuality. The Tribunal can accept a scenario where an individual with a legitimate claim based on sexuality may, nevertheless, make false claims, because of embarrassment. The Tribunal also notes the fact that the applicant is not overly educated and had a diffident manner, and sometimes it was an effort to obtain answers from him to questions of the Tribunal. Given those factors, the Tribunal might have made allowances for the initial false claims.

42. However, a difficulty for the Tribunal is the fact that the applicant claims to havE been in a relationship with [Mr A], and living with him for more than 18 months, when the protection visa application was made in November 2014. [Mr A] struck the Tribunal in the hearing as articulate and assertive in giving evidence and in making representations on behalf of the applicant. In that context, the Tribunal did not understand why [Mr A] would not have been the person to have assisted the applicant in making the protection visa application in November 2014 and persuaded him, and given him confidence, as he is doing now, to make truthful claims based on his sexuality, rather than false claims.

1. As it is, on the applicant’s evidence in the first Tribunal hearing, he did not seek the assistance of [Mr A] in making his initial claims. Instead, the applicant indicated that he sought the assistance of a pastor who helped him write the false claims. In the hearing, both the applicant and [Mr A] gave evidence that they argued about the fact that the applicant would not make truthful claims based on his sexuality, with [Mr A] wanting the applicant to make claims based on being homosexual.

2. However, in the second Tribunal hearing the applicant gave contradictory evidence. He indicated that the person who helped him with the original claims was a [specific ethnicity]. The Tribunal asked the applicant what this person did for work, and the applicant said that he worked in factories. The Tribunal put to the applicant that he had indicated in the first hearing that this person was a pastor. The applicant responded that this person had worked in factories, but then became a pastor. As indicated to the applicant in the hearing, the Tribunal does not accept that the applicant would not have told the Tribunal in the second hearing the most recent profession of this person, and particularly if this person was a pastor. The Tribunal is inclined to think that this explanation was an untruth designed to explain a clear inconsistency.

3. Further, in the second Tribunal hearing, the applicant indicated that, when he lodged the protection visa application, [Mr A] did not know that he was making the application on a false basis. The applicant indicated that it was not until the refusal of the application by the Department that [Mr A] became aware of the application and gave advice to the applicant to make a claim on the true basis of his sexuality.

4. This evidence is inconsistent with the evidence of both the applicant and [Mr A] in the first Tribunal hearing that they argued about the applicant making the false claims.  The applicant did not adequately explain this inconsistency in the second Tribunal hearing.

5. On whatever version of the applicant’s claims, the Tribunal does not consider that [Mr A], considering the claimed intimate relationship, would not have been aware of the applicant wanting to make false claims for protection and would not have been in a position to persuade the applicant to make truthful claims instead based on the applicant’s sexuality.

6. In the interview with the delegate, the applicant indicated that he did not learn of the option of a protection visa until around the time he made the application in November 2014. The applicant acknowledged that he had friends in Australia but indicated that they did not know of the option. The Tribunal considers, if the applicant had a genuine fear of facing a real chance of serious or significant harm in return to PNG based on his sexuality or otherwise, that he would have made enquiries and discovered the option of a protection visa and a much earlier point in time, including even on his earlier visits to Australia.

7. The failure of the applicant to make claims for protection (truthful or otherwise) soon after arriving in Australia, or at least soon after developing his relationship with [Mr A], and the fact that the applicant made supposed truthful claims many months later without the assistance of [Mr A], is undermining both of the applicant’s claims to be homosexual and the genuineness of the relationship, as well as the applicant’s overall credibility. The applicant’s credibility is also undermined by the directly inconsistent evidence as to the profession of the person who assisted the applicant to make the initial application, and whether [Mr A] knew of the untrue application.

8. Secondly, the claim by the applicant that [Mr A] persuaded the applicant to make truthful claims based on his sexuality, after the decision by the Department to refuse the visa is not suggested by the communication made by the applicant to the Department, after the refusal decision, authorising [Mr A] to act on the applicant’s behalf. It might be expected that, if the applicant had decided at that point to reveal his true claims, that his letter to the Department [in] June 2015 would have done so. Instead, the letter indicates that some of the prior information provided might not have been correct because the applicant had not properly understood. Reference is made to the applicant not understanding grammatical English and the death of his son just before the interview, which affected the ability of the applicant to give evidence.

9. Saying that there were misunderstandings, or there was confusion or difficulty in giving evidence is different to a claim that the initial claims were not true; instead the applicant has indicated that there were truthful claims based on sexuality.

10. In response to this issue in the second hearing, the applicant indicated that he was reluctant to reveal his sexuality to the Department. As indicated to the applicant in the hearing, the Tribunal does not consider that this makes sense. If the applicant had agreed to make truthful claims based on his sexuality, then it was implicit that he would need to reveal these claims to the government authorities in order to make the claim.

11. Therefore, the communication from the applicant after the refusal by the Department seeking to indicate that the applicant was confused and the like is not consistent with the claim that, at that point in time, with the assistance of [Mr A] the applicant had decided to reveal the truth.

12. Thirdly, the applicant’s evidence as to his sexual activity in Australia prior to his last visit in 2013 was unsatisfactory. The applicant constantly shifted in his evidence as to how many sexual encounters he had had during his visits to Australia. He first indicated an encounter with one individual only, shifting then to encounters with two individuals and then adding an encounter with a third individual. As the Tribunal progressed to discuss with the applicant his activities during sequential visits to Australia the applicant simply added additional encounters, contrary to prior evidence. The way that the applicant gave this evidence caused the Tribunal to consider that the applicant was simply concocting incidents as evidence progressed.

13. In a submission provided following the first hearing it was indicated that the applicant mentally froze at the first hearing and was unable to properly understand even very basic personal questions.

14. Even acknowledging for the applicant’s lack of sophistication, hesitancy, and a potential considerable reluctance to discuss or express his sexuality, the applicant’s description of his sexual activities on his visits to Australia did not have a sense of realism or detail that resulting in the Tribunal describing events that actually happened. The Tribunal is not satisfied that the shifting and inconsistencies in claims is explained by limitations inherent in the applicant’s personality.

15. Fourthly, the applicant was confused and provided no significant personal detail in relation to his claimed partner of more than four years [Mr A]. The applicant was hesitant and inconsistent as to whether [Mr A] had children. The applicant indicated that [Mr A] was originally from [Country 1], in contrast to [Mr A’s] evidence that he was from [Country 2]. When this was put to the applicant he indicated that he was confused. The Tribunal asked the applicant to provide the Tribunal with some personal details relating to [Mr A] that would be consistent with them having been in a relationship together for a considerable period. The applicant did not provide any personal details.

16. [Mr A] commented on these deficiencies in evidence by indicating that the applicant was very nervous. [Mr A] indicated that the applicant knows that he has children and overhears them speaking on the telephone and asked the applicant to tell the Tribunal how many children that he has. The applicant answered [a number]. [Mr A] asked the applicant to tell the Tribunal what happened to [Mr A’s] brother and the applicant responded that he was murdered, which [Mr A] indicated was the case.

17. The Tribunal acknowledges that the personal characteristics of the applicant and anxiety during the hearing could well limit his ability to provide detail and nuance about his partner. Nevertheless, the vagueness and inconsistencies of the applicant in relation to his claimed long-term partner was of concern to the Tribunal.  The Tribunal has made allowances in relation to the applicant’s evidence, but the evidence on this issue does cause the Tribunal concern.

18. Fifthly, the applicant presented to immigration officials in October 2014 indicating that he wanted to apply for a visa to remain in Australia and work, without mentioning any fear of returning to PNG. This information, as indicated by the delegate and indicated on the Departmental file (folio 26), was put to the applicant in the first Tribunal hearing pursuant to the procedural requirements of s.424AA of the Act as adverse to his claims, because he makes no mention in that discussion with Departmental officials of wanting to stay in Australia because of any fear of harm in returning to PNG. Based on that discussion, the Tribunal could conclude that the reason the applicant wished to remain in Australia was to work.

19. In response, the applicant indicated that he was scared to reveal his sexuality and his real reason for wanting to stay.

20. The Tribunal does make some allowance for an understandable hesitancy of the applicant to reveal his claimed sexuality. Nevertheless, the failure by the applicant not to mention any fear of returning to PNG just before he made his application for the protection visa does buttress more significant credibility concerns.

21. Sixthly, there are broader credibility concerns in relation to the applicant. He has demonstrated a willingness to provide a false claim for protection and to repeat untrue claims before the delegate under oath.  Further, the applicant was untruthful to the delegate as to the full details of his previous visits to Australia. When asked about prior visits, the applicant failed to disclose visits to Australia in [two specified years] on a passport in a different name. In response to this concern in the hearing, the applicant acknowledged these visits and not mentioning them to the delegate, but he indicated that he thought that, if he admitted to these visits in a different name, it might create difficulties for immigration. Whilst the Tribunal might accept the reluctance of the applicant to reveal these visits for this reason, this evidence does reinforce a tendency for untruthfulness on the part of the applicant.

22. The Tribunal notes that [Mr A] gave evidence in the hearing consistent with that of the applicant, that they started a sexual relationship a week after they first met in March 2013 and that the applicant moved in with [Mr A] and, from that point on, they have been in a genuine relationship.

23. The Tribunal considered these six credibility concerns. The Tribunal has made allowances due to nervousness and a lack of sophistication on the part of the applicant. However, even making those allowances, the cumulative impact of these credibility concerns are very damaging to the applicant’s overall credibility, and of his specific claim to be homosexual and in a genuine same-sex relationship with [Mr A].

24. The Tribunal has taken into account the supporting statements of [Mr B] and [Ms C].  As they did not attend the second Tribunal hearing, it was not possible to further explore these statements, nor hear from the additional proposed witness. The applicant had attempted to contact them by phone prior to the hearing but without success.

25. Whilst the statements by [Mr B] and [Ms C] attest to the applicant and [Mr A] being in a genuine relationship, those statements are very general and provide no details other than to assert the relationship based on visits to their home.

26. The Tribunal considered whether it ought to provide a further opportunity for the various proposed witnesses to give evidence; it determined not to do so. Ample notice and opportunity had been provided for the witnesses to be available at the second Tribunal hearing. The applicant has a duty to make his own case. The Tribunal also took into account the many other credibility issues undermining claims by the applicant that he is homosexual and is in a same-sex relationship as a ground for fearing returning to PNG, which are very considerably undermining the applicant’s credibility.

27. The Tribunal has taken into account the [state] Relationship Certificate dated [in] October 2015. This Certificate was obtained 31 months after the applicant and [Mr A] had started living together. The Tribunal notes that it has also been obtained following the refusal of the delegate which might lead to a suggestion that it was obtained to support a new, and untruthful, avenue to seeking a protection visa.  Whilst the Tribunal has taken the Certificate into account, it does not persuade the Tribunal that the applicant is in a genuine relationship given other credibility concerns identified.

28. Considering all of the evidence, the Tribunal is not satisfied that the applicant has been a truthful witness. The Tribunal is not satisfied as to any of his substantive claims. The Tribunal is not satisfied that the applicant is homosexual or has been in a genuine same-sex relationship with [Mr A]. The Tribunal has given a degree of weight to the contrary evidence of [Mr A] and [Mr B] and [Ms C] but that evidence does not overcome the significant cumulative impact of the various credibility concerns.

29. The Tribunal is not satisfied that the applicant would identify as homosexual on return to PNG or be perceived to be homosexual such as to lead to a real chance of him facing serious or significant harm as a result.

30. The applicant made reference in the interview to fearing that he would be harmed based on spending time in Australia and being perceived to have money. There is no independent information before the Tribunal that would indicate that PNG citizens, who have lived in Australia, and who are perceived to work here, would be targeted on return as a result. In any event, in the second Tribunal hearing, the applicant indicated that he had no recollection of making a claim on that basis and indicated that he did not have a fear of returning to PNG due to being perceived to be wealthy. The Tribunal is therefore not satisfied that there is a real chance of the applicant facing serious or significant harm on return to PNG merely on the fact of having lived for a period in Australia and a perception that he may have worked here.

31. There is a certificate on the Departmental file which restricts the disclosure of certain information on the file. There are two sets of documents that are restricted in this way. The first set of documents are certified under s.438(1)(a) of the Act on the basis that information would be contrary to the public interest because it contains documents relating to business affairs. The Tribunal is of the view that this is not a reason that justifies public interest immunity and therefore finds that the certificate as relating to these documents is not valid.

32. One of these documents contains administrative information held by the Department of no relevance to the application. The other document is the record of an interaction with the applicant and the Department in which the applicant indicates that he wanted a visa in order to work as referred to in the fifth credibility issue.  As required, the substance of that adverse information was put to the applicant, which the Tribunal was required to do, whether the certificate was valid or not.

33. The remaining set of documents are certified under s.438(1)(b) of the Act on the basis that the information was given in confidence by a third party and should not be disclosed to the applicant. The documents in question are an Identifying Information Report of the Department comparing the identities of the applicant in two different passports in different names that have been utilised by the applicant, as acknowledged by the applicant in the hearing. As the report in question has been prepared by the Department and the underlying information relates to passports held by the applicant the Tribunal does not consider that the report is based on information provided in confidence by third parties. The Tribunal therefore does not consider that the reason advanced for the certification is valid. The Tribunal therefore finds that the certificate relating to these documents is not valid.

34. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason for any of the reasons claimed, or for any other reasons.

35. In summary, the Tribunal is not satisfied that 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 would face a real risk of serious or significant harm.

36. 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).

37. 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).

38. There is no suggestion that the applicant satisfies any other aspect of 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 criteria in s.36(2).

    DECISION

39. The Tribunal affirms the decision not to grant the applicant a protection visa.

    David McCulloch
    Member