1514038 (Refugee)

1514038 (Refugee) [2017] AATA 2199 (1 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514038
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:David McCulloch
DATE:1 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 01 November 2017 at 3:30pm

CATCHWORDS
Refugee – Protection visa – Papau New Guinea – Social group – Accused of Witchcraft – Burn injuries – Chairman of a Village Land Owners Association – Political rivalry in the applicant’s village – Vulnerable person – Inconsistent evidence – Credibility issues
LEGISLATION
Migration Act 1958, ss 36, 36(2)(a)-(c), 65, 425, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
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] September 2015.
The applicant appeared before the Tribunal by telephone on 6 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing by telephone.
The hearing was scheduled to take place by video conference, with the applicant at [another location] and the Tribunal in Sydney, New South Wales. The interpreter and the representative were to attend by telephone. Before the hearing commenced, there were significant difficulties in establishing a stable video connection with the applicant. Tribunal IT staff were consulted and the connection improved somewhat with their help. The hearing commenced. However, as the hearing commenced, prior problems resurfaced, with the connection constantly dropping out. Tribunal staff indicated that, based on past experience, and the location of the applicant, similar problems could well occur even if the hearing was rescheduled for another date. The Tribunal indicated to the applicant that its options were to continue the hearing by telephone conference or for the hearing to be rescheduled at a later date in Sydney, with the applicant attending in Sydney. The Tribunal acknowledged that this would impose a cost to the applicant. The applicant’s representative indicated that the cost of this would be prohibitive to the applicant. After consulting with his representative it was indicated that the applicant was happy to proceed with the hearing by teleconference. The hearing proceeded in this manner.
In the written submission provided by the applicant’s representative following the hearing it was submitted that there were difficulties suffered by the applicant in giving evidence due to technical issues. It is claimed that it was difficult to hear communication between telephone lines. The Tribunal is not satisfied of this. Communication was clear at the Tribunal’s end. There were not sustained responses by the applicant to questions that suggested to the Tribunal that he had difficulty understanding the Tribunal or the interpreter. At no point did the applicant, the representative or the interpreter express any problems with communication during the course of the hearing. There was no technical interruption once the hearing progressed by telephone as agreed to by the applicant and his representative.
The Tribunal is satisfied that the applicant had a reasonable opportunity to give evidence and present his case by telephone without any significant technical impediments during his substantive evidence such that the invitation to the hearing given under s.425 of the Act was not real and meaningful. The Tribunal is not satisfied that there were technical difficulties for the Tribunal in assessing the applicant’s evidence and credibility.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
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. The Tribunal has before it DFAT Country Report – Papua New Guinea, 10 February 2017.
The issue in this case is the credibility the applicant and whether, on his 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
The decision of the delegate, a copy of which has been provided by the applicant to the Tribunal, indicates that the applicant arrived in Australia [in] March 2013 on a Tourist visa. This visa expired [in] June 2013, after which the applicant became an unlawful noncitizen. The application for the Protection visa was lodged [in] November 2014.
The application forms for the Protection visa, which were completed with the assistance of a [Mr A], indicate the following. The applicant was born on [date] in [Town 1], Southern Highlands, PNG. The applicant is a Christian. The applicant speaks and reads Tok Pisin and no other languages. The applicant indicates that he was separated from his wife in 2011. The applicant lists [children] living in PNG. The applicant lists no education. The applicant lists no professional or trade qualifications. The applicant lists no employment history. From birth until October 1983 the applicant lived in [Town 1]. From November 1983 until February 2010 the applicant lived in [the] National Capital District. From August 2010 until February 2011 the applicant lived in [Town 1].
The claims for protection, which are written in the third person, indicate the following. The applicant was the elected leader and Chairman in his village of the Gurubu Warudugabe Association Inc. In the applicant’s role as Chairman he negotiated with an oil drilling company on behalf of his community. This position led to jealousy from a rival group.
An important person died and the applicant was accused of witchcraft. This accusation was made by his jealous rivals. The violence was linked to the applicant’s role in direct negotiations with the oil company. This role had great power in directing remuneration. The applicant was blamed for the death and severely [burnt]. The applicant was hospitalised. As a result, the applicant fled to Australia.
The applicant was unable to get help from the police as the village was very isolated and far away from the police station.
Reference is made to research literature which shows that there is little police can do in the face of armed and dangerous persons/groups. A chapter of a book, Conflict and Resource Development in the Southern Highlands of PNG[1], is provided. The chapter provided indicates that there has been prevalent violence in the Southern Highlands as a result of intergroup rivalries which have been compounded by competition for returns from mining and petroleum companies.
[1] Nicole Haley and Ronald J May (eds), Conflict and Resource Development in the Southern Highlands of PNG, 2007
It is indicated that, if the applicant returns to PNG, the same people who accused him will harm him. It is indicated that similar situations have happened in the same area and in all parts of PNG. It is indicated that those accused of witchcraft must be burnt to death and for this reason the applicant will lose his life. Law enforcement authorities do not have the capacity to take action.
Photographs are provided of what is indicated to be the applicant showing burns on his [body].
A photocopy is provided of a Membership Card in the name of the applicant of the Gurubu Warudugabe Association, and showing the applicant as Chairman. An original of this card was provided to the Tribunal.
A written submission dated 30 September 2015 was provided by the applicant’s representative to the Tribunal.
A further submission was provided by the applicant’s representative dated 14 July 2017. It attaches a Statutory Declaration of the applicant dated 12 July 2017.
The applicant’s Statutory Declaration dated 12 July 2107 provided as follows (not corrected for spelling or grammar):
My full name is [name]. I was born on [date] in [Hela] Province, Papua New Guinea.
I belong to [a certain] clan and am of the Christian faith.
My only living relative is my [sister]. I no longer remain in contact with her.
I am married to my [wife]. We were married in [date], before my eldest son was born. We separated however, since the events in February 2011 and I no longer remain in contact with her.
[Details of children deleted].
I remain in contact with my three children. I don't talk to them directly as they do not have a telephone but I call people I know in Papua New Guinea who can get in touch with my children and pass messages for me. When I have work (as a [occupation]), I send money back to my children. I currently do not have work.
I completed up to grade three in primary school in my village in [Town 2].
I lived in [Village 1] until I was approximately [age] to [age] years old. I then moved to the [Port Moresby], National Capital District.
During this time, I was employed [in various jobs] for a couple of years.
I would save my money from working and then travel back to [Village 1] where I would stay for a few months before returning to Port Moresby for work. I did this for many years. My wife and children lived in [Town 2] while I travelled back and forth. I would also save enough money to buy food for my wife and children.
I briefly moved back to [Village 1] in August 2010, returning to Port Moresby in February 2011. In late 2010, there were discussions in the village about who to appoint as Chairman of the Gurubu Warudugabe Association Inc, which was a landholders association. I was considered for appointment as the Chairman for the purpose of organising and mobilising people, to carry their voice, and to advocate for them about their problems.
As a Chairman, I would have been responsible for talking to men, women and children regarding their problems and concerns. However, as I was never actually elected, I did not negotiate or talk with anybody myself. My PNG countryman [Mr A] who helped me to prepare my protection visa application had actually misunderstood the information that I had explained to him. He might have written in the application that I was elected as a Chairman of the Gurubu Association. [Mr A] is from Western Sepik Province and I am from Hela Province, His province is far from mine. He speaks Pidgin language but his dialect and my dialect are not exactly the same. That could be the reason for the misunderstanding. When preparing my Protection visa application, he did not use the interpreter.
I was told that I would be the Chairman of the Organisation. I agreed but did not fully know how that would work in reality. I was thinking that they would provide me some training after such an honorary appointment.
I was given a membership card in 2010. My lawyer informed me that the Immigration officer who interviewed me said that I was appointed in 2009. I do not think this is correct as I was actually given the card in 2010. I do not think there is any date on the card which actually shows the date of my appointment. That date on the card (2009) should be the date when that Association was formed. I do not actually know about the date 2009. I am really finding difficult to remember and provide answer for everything after going through the extremely traumatic experience of being burnt.
The reason I was a candidate for the role of Chairman was because I was a member of my community. Other people were also considered and talked about as candidates.
While these discussions were happening, in January or February 2011, an important person in my village died, named [Mr B]. [Mr B] was one of the tribal men in the village and was also my neighbour, whom I was friendly with. On the night that [Mr B] died, I was at home building a fire when a group of approximately five or six men from the rival group accused me of being a 'witchcraft person', and said that they intended to kill me in revenge,
The suspicion of witchcraft is a strong part of Papua New Guinean spiritual beliefs, which dictate that witchcraft practitioners are burnt to death. Similar incidents of this have occurred with other people in my region and throughout Papua New Guinea,
I only knew two of the men who came to my house that night. One of them was a relative of [Mr B]'s and the other was the man who opposed my appointment as Chairman of the Gurubu Warudugabe Association Inc.
I believe that the men who opposed my appointment as Chairman had joined up with a group of [Mr B]'s relatives, and had sought to use the death of [Mr B] as justification for killing me.
After accusing me, the men then grabbed me by my arms and legs and put me on the fire. My wife then started to scream, which made the group of men let me go and flee. I was then able to escape and run to the river.
I was severely [burnt] and needed to go to the hospital.
After dipping in the river, I hid in the bush before setting out on foot during the night time to go to the hospital for assistance. I slept 'rough' overnight and then walked for an additional day to make it to the hospital in [Town 1].
I spent three weeks in [Town 1] Hospital to be treated for my burns. After that time, I learned that the group of men who had attacked me were looking for me at the hospital. Somebody must have told them I was there.
I then escaped the hospital and hid for another three days. I then made my way to the airport in [Town 1], and caught a flight to Port Moresby. I paid for this with money I had in my pocket when the men attacked me. I always carried money with me because it is better to carry it than have somebody steal it from your house. I was also used to going between Port Moresby and [Village 1] so I always kept the flight money with me,
I was unable to seek appropriate protection or assistance from the police, as my village is very isolated and far away from the nearest police station. Even if I went to the police, they would still kill me or abuse me because it is they, too, would accuse me of witchcraft.
Since relocating to Port Moresby in February 2011, I was aware that the same group of men were still looking for me. They sent messages to their relatives looking for me. I found this out from people in the community who heard they were looking. Due to this, I was relocating within Port Moresby every one to two weeks.
I arrived in Australia [in] March 2013. I flew in on a Tourist Visa and landed in [an Australian city].
I am fearful for my life in Papua New Guinea, as I believe I would be physically attacked and likely killed by the men who were seeking revenge. I am also scared that they may harm me if they saw the scars on my body, and found out that these were the result of burns which were inflicted because I was accused of using witchcraft. Therefore I am seeking protection in Australia.
Following the hearing, a further Statutory Declaration was provided by the applicant dated 26 September 2017 addressing a number of issues raised by the Tribunal in the hearing. Relevant information from this Declaration is outlined further in this decision. A further written submission was provided by the representative dated 26 September 2017.
Provided following the Tribunal hearing is a letter from [a] Church Minister, [from an Australian] Church, dated [September] 2017 indicating that the applicant has been attending the church on a regular basis since 2015. Letter indicates that the applicant has a quiet and pleasant personality and is of good character, moral principles and values.
The Tribunal has taken into account submissions and independent information referred to in the various submissions. Pertinent submissions and information are referred to further in this decision.
Independent information
Sorcery and witchcraft
DFAT Country Report – Papua New Guinea, 10 February 2017 provides:
There is a strong belief throughout PNG in the power of the supernatural, in particular the ability of ‘witches’ or ‘sorcerers’ to use magic. This belief is prevalent in both rural and urban areas. In some instances, when a person dies (generally of unexplained causes or prematurely), someone is accused of having caused the death by witchcraft and is attacked by the community as ‘payback’ (see ‘Tribal Violence’). The identification of individuals as witches or sorcerers is arbitrary and subjective. The accusation may be motivated by considerations such as jealousy or greed (for example, seeing an opportunity to obtain the property of the accused); or aimed against those who do not fully fit, such as outsiders, the elderly, the disabled, or the marginalised, particularly women.
Police are frequently reluctant to intervene in witchcraft cases. They themselves are members of the community and might face retributive attacks, or may be themselves afraid of the alleged sorcery or witchcraft tool. Large and highly agitated groups of people generally carry out sorcery-related killings. In some cases, police have reported that they lacked the manpower to intervene against large crowds. Human Rights Watch reported in 2015 that the risks to people accused of sorcery were so real and severe that the main approach used by NGOs seeking to help them was to relocate the accused to another community (see also ‘Internal Relocation’).
In May 2013, PNG repealed the Sorcery Act (1971). Section 16 of the Act had allowed for sorcery as provocation to be used as a defence in cases of sorcery-related murder. At the same time, the government changed the law to allow for the execution of those convicted of wilful murder of a person because of accusation of sorcery, aggravated rape, and robbery (see ‘Death Penalty’). The actions came after a series of brutal public killings, including the burning alive of a 20 year old woman in a village market in February 2013, and the beheading of a woman accused of black magic in April 2013.
On 21 July 2015, PNG’s National Executive Council endorsed a Sorcery and Witchcraft Accusation National Action Plan aimed at reducing sorcery-related violence. The plan, allocated a budget of PGK3 million (AUD1.44 million) in 2016, focuses on five strategic areas: care and counselling; advocacy and communications; legal and protection; the health sector; and research. At the time of publication, however, the funds approved for the implementation of the National Action Plan were yet to be released.
DFAT assesses that those accused of sorcery or witchcraft in PNG face a high risk of societal discrimination and violence. This discrimination may include being illegally detained, beaten or tortured, having their possessions stolen, being forced to leave their communities, or being killed.[2]
[2] DFAT Country Report – Papua New Guinea paras 3.46 – 3.51

The applicant’s representative provided references to independent information concerning sorcery in PNG in the submission dated 14 July 2017. It makes reference to country information which states that the belief in witchcraft is widespread in PNG. There is a reference to information indicating a widespread problem of violence related to accusations of sorcery and witchcraft. There is reference to the fact that accusations of witchcraft are often motivated by jealousy or revenge and can be prompted by death in the community.
The submission takes issue with the assessment by the delegate that allegations of witchcraft are usually levelled against women as suggesting the unlikelihood of accusations being levelled against the applicant.
Independent information is referred to which is cited as supporting the proposition that the state of PNG is unwilling or unable to protect persons accused of witchcraft from violence and persecution. It is indicated that police remain ineffectual in protecting persons accused of witchcraft notwithstanding the repeal of the Sorcery Act in May 2013. There is reference to the police force in PNG being riddled with corruption.
Interview, hearing, credibility, findings and assessment
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of the 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.
The Tribunal is satisfied that the applicant is a citizen of PNG and accordingly his claims will be assessed against PNG.
The Tribunal has the following credibility concerns with the applicant’s claims.
Firstly, there is inconsistent evidence that the applicant was involved in negotiation with oil companies in his role as Chairman of the Gurubu Warudugabe Association Inc. Further, the detail that the applicant has provided as to his appointment, his duties in that role, and the reason that he was appointed to this position has been inconsistent, shifting, and vague.
The Protection visa application form indicates that in the applicant’s role as Chairman he negotiated with oil drilling companies on behalf of his community. It indicates that the violence perpetrated against the applicant was linked to the applicant’s role in direct negotiations with the oil company.
In contrast, in the interview with the delegate, the applicant indicated that he did not participate in any negotiations with resource companies. He indicated that he observed only and did not put pressure on them or talk to them. He said that it was only the name that he was carrying.
In the interview with the delegate the applicant was asked whether he was elected to the role or if he was simply appointed. The applicant responded that he was just appointed but that that there would be a vote later.
The applicant was asked in the interview with the delegate what his duties were in the position. The applicant indicated that he would talk to people about problems that affected the land and mining. He said that the purpose was to organise people and to advocate the problems.
In the Statutory Declaration provided by the applicant to the Tribunal he said that he was never actually elected and he did not negotiate or talk with anybody himself, although his role would have been to talk to the community about their concerns. Although the applicant was told that he would be the Chairman he did not know how that would work in reality. He thought that he would have some training. The reason that the applicant was a candidate for Chairman was because he was a member of his community. Other people were considered and talked about as candidates.
In his Statutory Declarations the applicant blames inconsistencies in the application form with later evidence as due to the fact that his friend who helped him fill in the form spoke a different dialect of Pidgin.
In the hearing the hearing the applicant confirmed that he never actually did anything as Chairman, it was in name only. The applicant then indicated that he had not, in fact, been confirmed as Chairman. The Tribunal pointed out the Membership card of Gurubu Warudugabe Association he had provided which listed him as Chairman. The applicant indicated that this card was given to a number of individuals in the village who were in contention for Chairman, which was to be decided later.
There are, therefore, at least three different versions as to what activities the applicant undertook as Chairman, if any, and if, in fact, he had been appointed in the role, or was just a candidate with others.
In the first version it is indicated that the applicant was directly negotiating with mining companies, which was the reason that he was harmed. In the second version, the applicant observed only negotiations with mining companies and would also talk with the community. In the third version, the applicant did nothing because he had not in fact been appointed or elected, he was one of multiple candidates.
The applicant has indicated that the inconsistencies between the original written claims in the application form and later claims is due to a communication error with the person who helped him fill in the application form this spoke a different Pidgin dialect. The Tribunal is not satisfied of this. The written claims make the categorical repeated assertion that the applicant was directly involved in negotiations with mining companies. It is indicated that this is the reason why the applicant was attacked.
The Tribunal is not satisfied that such categorical and repeated statements could be a product of misinterpretation. The Tribunal is also not satisfied that the positive assertion in the written application form that the applicant was negotiating with mining companies actually meant to indicate that this was the job that the applicant would perform in the future, as the applicant suggested in the hearing.
The Tribunal finds the applicant’s explanation in the Tribunal hearing that multiple individuals in the village were given cards indicating that they were Chairman of the Association, but in fact that they were just candidates as fanciful. The Tribunal sees no reasonable basis on which individuals who would be candidates for a position would be given cards indicating Chairmanship when they had not been appointed or elected in such a role.
Secondly, credibility concerns above are supported by implausible evidence given by the applicant in the hearing as to as to his knowledge of other rivals for the position, and why they would want to harm him given the applicant’s lack of interest in the position.
In the hearing, the Tribunal asked the applicant if the Chairmanship of the Gurubu Warudugabe Association was a position that he actually wanted. The applicant indicated that he did not, that he did not know why he had been asked to fill the position. The Tribunal asked the applicant, in that context, why rivals for the position would go to the effort of harming the applicant when the applicant did not want the job. He could simply withdraw from contention and let the rivals fill the position. In response, the applicant indicated that he did not know, in fact, that there were rivals for the position until he was attacked and thrown in the fire.
As indicated to the applicant in hearing, the Tribunal finds this evidence implausible. The applicant indicated in the hearing that his village comprised of approximately [population] and all of the rivals for the Chairmanship were from the village. The Tribunal does not consider it plausible in the context of the community of such a limited size that the applicant would not be fully aware of other candidates for the position of Chairman and that there was contention concerning the applicant’s candidature.
Given that the applicant did not want the position, the Tribunal considers that, if there were rivals in a small village who did, then the applicant would have known about this, and would have simply withdrawn his candidature. The Tribunal does not consider it makes sense that the applicant’s rivals would need to accuse the applicant of witchcraft and throw him into in a fire to dissuade him from contending the position. All that would be required would be for them to tell the applicant that they wanted the position. Given that the applicant did not want the position, and did not know why he had been asked, the applicant would then have logically withdrawn from contention.
Thirdly, the applicant has given conflicting evidence as to his rationale for not reporting the incident of being burned to the police. Further, aspects of the applicant’s account of being later looked for at the hospital by the individuals seeking to harm him was vague. Whilst other aspects of the applicant’s account of what happened after he was attacked seemed implausible to the Tribunal, the Tribunal does not draw adverse inferences in relation to those specific issues, as discussed.
In the interview with the delegate, the applicant indicated that he was thrown on the fire in his village by a group of about five or six men who came to his home accusing him of the death of another villager, who had died of an illness, through witchcraft. The applicant indicated that one of the men was against him being appointed as Chairman. Another of the men was a relative of the man who died. The applicant indicated that his wife screamed as the applicant was being put on the fire, and that allowed the applicant to flee. The applicant indicated that he fled to the river. Thereafter, the applicant trekked overnight for a full day to [Town 1], where he went to the hospital and was treated. The applicant indicated that he was in hospital for three weeks. He said that those in the village who are after him, came to the hospital looking for him, but that the applicant escaped and hid in [Town 1].
The applicant was asked by the delegate whether he then reported the attack to the police. The applicant responded that the police were very far away. The applicant was asked whether there was a police station in [Town 1]. The applicant indicated that there was not.
In the Tribunal hearing, however, the applicant acknowledged that there was a police station in [Town 1] (there is a police station [distance] kilometres from the hospital, as evidenced from Google maps). Initially the applicant indicated in the hearing that he did not go to the police because it would require him to go out in the open and he might be found by the individuals looking for him. The Tribunal noted that it might be assumed that hospital staff would call the police on his behalf. Later the applicant indicated that he did not go to the police because it is well known that they would not take action in relation to sorcery allegations. The Tribunal indicated to the applicant that it might have thought that he would at least have made an attempt to seek the assistance of the police.
The Tribunal asked the applicant about claims that individuals seeking to harm him were searching for him at the hospital. The applicant indicated that the security guard told him that he was being asked for by certain individuals. The applicant indicated that this caused him to flee the hospital and hide in [Town 1] for three days, sleeping outdoors, before buying a plane ticket to Port Moresby. In the interview with the delegate, the applicant indicated that he had had all his money on his person when he was thrown in the fire. He indicated that he always carried his money with him as he did not want his children to access it.
The account of the applicant hiking a day and a half overland to reach hospital, with burns severe enough to require three weeks of hospitalisation, causes the Tribunal some incredulity. The applicant’s representative had submitted that the applicant was able to medicate himself on the trip with local flora. It is submitted that that what may seem out of the realm of possibility in an Australian context is a reality for the people of PNG. The fact of the applicant happening to have all of his money on him when he was attacked (the equivalent of about AU$[amount] as clarified that the applicant in the hearing), to enable him subsequently to be able to buy the plane ticket to Port Moresby, seems unlikely to the Tribunal. However, the Tribunal acknowledges that the fact that an event is implausible does not mean that it did not happen. The Tribunal does not draw adverse inference from the extraordinary nature of the account of the applicant hiking overland with severe burns or the fact that he, fortuitously, had all his money on his person when he was attacked, enabling him to buy the plane ticket to Port Morsbey.
The Tribunal does, however, have concerns with other evidence in relation to this part of the applicant’s claims.
The applicant’s evidence as to whether there was a police station in [Town 1] has been inconsistent. The applicant’s account as to why he did not seek the assistance of the police has shifted over time. The applicant clearly told the delegate that there was no police station in [Town 1], which there is. In the Tribunal hearing, the applicant explained that he told the delegate there was no local police station, he meant near his village. He said that he only answered the specific question that was asked. In fact, in the interview, the applicant was specifically asked if there was a police station in [Town 1], and he said no.
In the Tribunal hearing, the applicant then gave two different explanations as to why he did not go to the police. The first explanation was that he feared being out in public to travel to the police station because he might be found by those individuals seeking to harm him. That is inconsistent with later evidence by the applicant that he slept outdoors in [Town 1] for three nights. In any event, if the applicant arrived at the hospital with severe injuries the Tribunal considers that, when he explained how he obtained the injuries, hospital staff would have called the police on his behalf. When this was put to the applicant, he gave a different explanation as to why he did not go to the police, which was that the police would not take action on the basis that he was accused of sorcery.
The Tribunal acknowledges that there is independent evidence that police can be reluctant to investigate harm based on accusations of sorcery. Nevertheless, in the current situation, the actual reason the applicant was harmed was due to political rivalry. Whatever the cause, given the fact of a police station being nearby, the Tribunal considers, if the applicant’s claims are true, then, with the assistance of hospital staff, police would have been alerted to the attack on the applicant, and subsequent threats, particularly after the applicant claims he heard that these individuals had travelled to [Town 1] to seek to harm him again.
The applicant’s evidence as to his knowledge of individuals in [Town 1] looking for him was vague, with a sparse account of a security guard telling the applicant that individuals were looking for him. The responses that the applicant gave to questions on this issue lacked detail or embellishment causing the Tribunal to doubt that the applicant was recounting events that actually happened. As discussed further below, there were similar limitations in the applicant’s evidence concerning these individuals looking for the applicant subsequently in Port Moresby.
Fourthly, the applicant’s evidence that he was in hiding in Port Moresby for a significant period whilst individuals from his village who wanted to harm him or searching for him was not convincing to the Tribunal.
The applicant’s representative, in one of the written submissions to the Tribunal, indicates that the applicant is still seen as a threat and there will be ongoing attempts for ‘payback’. It is indicated that people from the applicant’s village frequently travel to and from Port Moresby. The applicant’s village [is] no longer isolated from Port Moresby because of oil drilling. Money from oil exploration provided to the villagers mean that they have the resources to fly backwards and forwards to Port Moresby. There are three or four flights seven days a week. For these reasons, living in Port Moresby is not a safe option for the applicant.
The applicant’s representative has also submitted that ‘wantok’ creates a risk to the applicant in Port Moresby. In effect, the wantok system create kinship alliances across PNG which means that the applicant’s location may be revealed to his previous attackers through kinship alliances in Port Moresby. It is submitted that the passage of time does not protect the applicant as the desire for retribution will remain over time.
The applicant indicated in the hearing that upon arrival in Port Moresby (sometime around or after February 2011) he worked [in a certain role] in the suburb of Port Moresby where he had previously lived for about three to four months. The applicant then indicated that individuals told him that they had heard that other individuals were looking for him based on allegations of sorcery. The applicant indicated that this caused him to go into hiding. He said he would move from place to place.
Initially, the applicant told the Tribunal that he did not work following being told that there were individuals looking for him. The Tribunal pointed out to the applicant that, in interview with the delegate, he had indicated that he was [working], and he had not said that he had stopped this at any point when he became fearful that he was being looked for. The applicant then indicated that he did [have a job] when he was in hiding. The Tribunal noted to the applicant that if he was [working in] Port Moresby [then] that could be seen as inconsistent with a claim of being in hiding from individuals seeking to harm him. The applicant then indicated that he [worked] in different areas to avoid being detected.
In the Statutory Declaration provided by the applicant following hearing he provided a different explanation. He indicated that he tried to [work in a different area], but this was not possible because people were trying to kill the applicant. In the Tribunal hearing the applicant did not indicate that he was not able to [do his job]. Instead he explained why he evaded those looking to harm him by [working] in different areas.
The Tribunal explored with the applicant whether he faced any problems after being warned that individuals were looking for him three or four months after arriving in Port Morsbey. The Tribunal asked this question more than once and the applicant indicated no subsequent difficulties. When the Tribunal put to the applicant that it appeared that he had suffered no difficulties from this point in time because he was in hiding, the applicant agreed that this was the case.
The Tribunal sought to obtain from the applicant further details as to how exactly he was in hiding for the approximately one year and nine months between going into hiding and leaving for Australia. It was difficult obtaining from the applicant details. After a number of questions, the applicant referred to living in different suburbs, sometimes with relatives.
The totality of the applicant’s evidence as to being in hiding in Port Moresby had an air of unreality to the Tribunal. The applicant only referred to one conversation where he was vaguely told that individuals who accused him of sorcery were looking for him. On that basis, the applicant claims to have gone into hiding for a period of one year and nine months. The Tribunal finds it unlikely that the applicant would go into hiding for a period of one year and nine months without receiving further details or information concerning these individuals, who they were, and what they were subsequently doing to locate him. Port Moresby is a relatively small city. The applicant had lived there for many years. He had relatives there and people he knew. In that context, the Tribunal considers that, if there were individuals from his home area searching for the applicant regularly in Port Moresby, this would become known to people known to the applicant and passed on to the applicant, beyond the initial warning provided to the applicant. The Tribunal does not consider that it makes sense of the applicant would go into hiding for a year and nine months on the basis of one report of individuals looking for him and be unable to provide any further detail or information about these individuals subsequently searching for him.

The applicant has provided inconsistent evidence as to [his work]. In the Tribunal hearing the applicant indicated that he did this in different areas, to avoid detection. The Tribunal does not consider that this is consistent with the applicant being in hiding and in fear of being found by individual searching for him in the relatively small city of Port Moresby. In any event, the applicant changed his evidence in the Statutory Declaration provided following the hearing by indicating that, whilst he made an initial attempt to [continue working], he did not proceed to do this because individuals were looking to kill him.
Fifthly, the delay by the applicant of 20 months after arriving in Australia to make the claim for the Protection visa is undermining of the applicant’s claims.
The applicant has claimed that his reason for coming to Australia was to escape from those from his village who were seeking to harm him, including looking for him in Port Moresby. In response to the issue of this delay in the interview, the applicant indicated that he had no friends in Australia and that he did not know how to apply.
This issue was further explored in the hearing. The Tribunal indicated that it accepted that, in the early stages of arriving in Australia, there may have been difficulty for the applicant in obtaining advice, including as a result of language difficulties. However, if the applicant had left PNG because of the fears claimed, the Tribunal had difficulty accepting that the applicant would not have made appropriate enquiries earlier than around 20 months after arrival, noting that he was an unlawful noncitizen for much of that period. The Tribunal also noted that the Department of Immigration facilitates communication in different languages. In response, the applicant maintained that he did not have the ability to investigate options. Reference was made to the applicant being illiterate and the difficulty of him filling in the application forms without assistance. Claims to this effect were repeated in the Statutory Declaration and the submission provided following the Tribunal hearing. Submissions were made by the representative that a delay should not undermine what are otherwise strong claims.
As indicated, the Tribunal acknowledges the difficulties for the applicant in initially taking steps to apply for a Protection visa. Nevertheless, a delay of 20 months is not consistent with the applicant fleeing PNG for fear of persecution or significant harm. The delay is not determinative in adverse credibility findings, but it does buttress other more significant credibility issues. The Tribunal does not think, given the credibility issues on key matters, that the applicant’s claims are otherwise strong were it not for the delay in applying for the Protection visa.
The Tribunal considers the entirety of the evidence and these five credibility issues, also in the context of mitigating factors argued by the applicant and his representative.
The applicant’s representative, in one of the written submissions provided prior to the Tribunal hearing, indicated that there was miscommunication with the delegate by the applicant and a lack of assertiveness in pressing his claims. It is submitted that the applicant is illiterate and uneducated.
In the submission provided following the hearing applicant’s representative has referred to the need to consider all of the evidence and the dangers in imposing too high a standard in assessing a person’s level of knowledge. Reference is made to claimants understandably forgetting dates, locations, distances and personal experiences through the passage of time. Reference is made to trauma affecting the applicant.
It is also submitted that problems in the applicant’s evidence are explained by interpreter problems and technical communication issues in the hearing.
In the Statutory Declaration and the representative’s written submission provided following the hearing it is reiterated that the applicant is illiterate and not well educated. It is also indicated that the applicant is a ‘vulnerable person’ in terms of Tribunal guidelines due to the attack on him and that this has created trauma which affects his memory and cognitive ability.
The Tribunal accepts that the applicant is not well educated and may be illiterate. However, that does not mean that the applicant lacks intelligence, common sense or an ability to make his way through life. The fact of the applicant being nominated to represent his community in relation to land and mining issues (which, as indicated below, the Tribunal accepts was the case) would not suggest that the applicant was perceived by fellow villagers as lacking in intelligence or verbal skills. Nevertheless, the Tribunal does make allowances for hesitancy on the part of the applicant expressing himself in the context of the Tribunal hearing and interview with the delegate, which could well be intimidating for the applicant, also noting communication through an interpreter.
The Tribunal acknowledges that credibility needs to be assessed globally and should not be undertaken by pedantically picking evidence to pieces. Nevertheless, evidentiary problems on many small issues can cast doubt on overall credibility. In the current case, credibility concerns are numerous, some relating to matters quite central to the applicant’s claims. The credibility issues also permeate the spectrum of the applicant’s claims.
The Tribunal addresses submissions that there were communication issues that hampered the applicant’s evidence in the Tribunal hearing and that interpreter difficulties have prejudiced the applicant. As indicated earlier in this decision, the Tribunal is not satisfied that there were significant or sustained communication problems in the Tribunal hearing, once the hearing progressed by telephone after the initial difficulties with the video link. In the absence of any evidence provided of interpretation problems, the Tribunal is not satisfied of this. Certainly, based on the Tribunal listening to the recording of the interview with the delegate and presiding over the Tribunal hearing the Tribunal did not form the impression there were any significant or sustained problems with the interpreter.
The Tribunal addresses claims that the applicant is a ‘vulnerable person’ in terms of Tribunal guidelines as a result of past trauma and that that trauma has created cognitive and memory difficulties for the applicant. This was a claim made for the first time in a submission provided after the Tribunal hearing. This is a claim that goes beyond a claim that the applicant is unsophisticated and lacking in education and literacy.
In the hearing, the applicant indicated, in response to an introductory question, that there were no impediments to his ability to answer the Tribunal’s questions. No medical evidence has been provided that the applicant suffers from mental health conditions, such as post-traumatic stress disorder and/or other cognitive impairments. No evidence has been provided that the applicant suffered mental health issues, or sought medical advice, in the period he lived in Port Moresby following the attack. The Tribunal might expect that if the applicant was facing the effects of significant past trauma that he would have sought some medical assistance in Australia.
In the absence of the applicant indicating in the hearing any difficulties in this respect, and in the absence of medical evidence, the Tribunal is not satisfied that the applicant is suffering any medical conditions that affects cognitive ability or memory such as to explain and overcome the cumulative impact of the various credibility issues identified.
Considering the entirety of these explanatory factors for deficiencies in evidence, the Tribunal make some allowance for a lack of education and sophistication on the part of the applicant, and the stress and intimidation of the Tribunal hearing and in the interview with the delegate. However, the Tribunal is not satisfied that these or any of the other explanatory factors overcome the significant cumulative impact of the credibility concerns identified. The Tribunal is of the view that the numerous, and some quite significant, concerns are reflective of the fact that the applicant has not been truthful in his claims. As noted, the deficiencies in evidence cover the spectrum of the applicant’s claims.
The Tribunal is not satisfied as to key substantive claims by the applicant. The Tribunal is not satisfied that there were rivals for a position of Chairman of the Gurubu Warudugabe Association in the applicant’s village who attacked the applicant and who persuaded others to join in an attack on the applicant on the basis of alleging that the applicant killed a person in the village by sorcery. The Tribunal is not satisfied that there are either rivals or individuals from the applicant’s village who think that he has engaged in sorcery, or do not wish him in the role as Chairman, who have a desire to harm the applicant.
The Tribunal is not satisfied that the applicant was thrown into a fire in the circumstances claimed. The Tribunal is not satisfied that the applicant fled to [Town 1] on foot where he was hospitalised in the circumstances claimed. The Tribunal is not satisfied that the individuals seeking to harm the applicant came searching for him at the hospital in [Town 1] causing the applicant to flee the hospital and live on the streets in [Town 1] for three nights before catching a flight to Port Moresby. The Tribunal is not satisfied that the applicant was told that there were individuals looking for him in Port Morsbey as a result of allegations that the applicant had the engaged in sorcery. The Tribunal is not satisfied that the applicant went into hiding in Port Morsbey to escape from these individuals. The Tribunal is not satisfied that there are individuals in PNG who have been looking for the applicant anywhere in PNG in order to harm him or who have an intention to harm him in the future.
The Tribunal acknowledges that independent evidence indicates that accusations of sorcery can be made on the pretext of other matters, and that such allegations can be the cause of individuals facing harm. That can involve being burned. The Tribunal acknowledges that there are photographs showing that the applicant has been burned. Despite the fact that this evidence makes plausible what the applicant is claiming, the cumulative impact of the credibility concerns result in the Tribunal not being satisfied that what the applicant is claiming is true. Whilst it is clear that the applicant has been burned, the Tribunal is not satisfied that this has happened in the circumstances claimed.
The Tribunal has taken into account the Membership card provided by the applicant showing his Chairmanship of the Gurubu Warudugabe Association. The Tribunal is prepared to accept that the applicant was appointed to some role in his village in providing community input into the Association. However, that fact is not significantly probative of the truth of the applicant’s claims as to him being attacked and hunted for the reasons claimed when weighed against the many credibility concerns identified.
The Tribunal has taken into account the letter from the applicant’s [church] in Australia indicating that he has attended church regularly since 2015 and is a person of good character.
In the Statutory Declaration provided by the applicant following the hearing he made a new claim. He indicated that the scars from the burns that he has sustained would result in people identifying him as a witch, which puts him at risk of harm everywhere in PNG. The Tribunal is not satisfied of this. No independent evidence has been provided, or is before the Tribunal, that would indicate that the existence of scarring on an individual would put them at risk in PNG on the basis of an assumption that they were involved in sorcery. In any event, no claim has been made by the applicant that he suffered any difficulty in Port Moresby in the two or so years after the incident as a result of having scars. If there were a risk based on scars then the Tribunal considers that the applicant would have faced problems during this period. As indicated, the Tribunal has not accepted that the applicant was in hiding during this period. Considering all of the evidence, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of having scars.
Given the factual findings, the Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm for any of the reasons claimed, or for any other reasons.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason.
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 will suffer significant harm.
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).

100. 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).
101. 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
102. The Tribunal affirms the decision not to grant the applicant a Protection visa.
David McCulloch
Member

[2017] AATA 2199

1 November 2017

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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Natural Justice

Appeal