1707048 (Refugee)

1707048 (Refugee) [2017] AATA 3011 (27 November 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707048
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Michael Hawkins
DATE OF DECISION:  27 November 2017
DATE CORRIGENDUM
SIGNED:1 February 2018
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:
1.Paragraph 110 has the word ‘not’ omitted mistakenly. The first sentence of the paragraph should state:
The Tribunal does not accept that, as he has claimed, he fears that he will be killed by members of the other branch of his family (or people acting on their behalf) because they fear that he or his descendants will try to reclaim the disputed land.

Michael Hawkins
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707048
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Michael Hawkins
DATE:27 November 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 November 2017 at 10:26am

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Federal Circuit Court Remit – Family dispute over customary land – Fear of violence inflicted by extended family – Witness credibility – Inconsistent evidence – Delay in applying for protection
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
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 [in] June 2016 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 (PNG), applied for the visa [in] June 2015. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm..
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant’s protection visa application form is very short of detail. Large parts of the form have been left uncompleted or questions have been answered with “N/A”.
The applicant is [age] year old man from [District 1] province of Jiwaka, Western Highlands Region, PNG.
The applicant is of the Christian faith, is of Papua New Guinean ethnicity, and speaks English and Pidgin.
The applicant is unmarried, though claims to be engaged. His mother is deceased and his father is living in PNG.
The applicant claims he attended and completed [schooling] in [PNG] but does not provide the dates.
The applicant states that he attended [a college] and completed a [diploma] but does not provide any dates.
The applicant provided no work history. He advised the delegate that he has worked as [Occupation 1] in his village since 2005. He also advised the delegate that he has been working in Australia since his arrival.
The applicant arrived in Australia [in] April 2011, under Passport [No], issued [in] 2011 and expiring [in] 2016 pursuant to a [temporary] visa granted [in] March 2011 and expiring [in] July 2011.
The delegate ascertained that the applicant’s visa expired [in] July 2011 and the applicant remained in Australia thereafter unlawfully. At this time it was learned that the documents submitted with his visa application revealed that his bank statement, letter from employer and invitation to visit Australia were all fraudulent.
[In] June 2015 the applicant was located and detained by the Department.
[In] June 2015 the applicant’s application for a [bridging visa] was refused.
On 8 July 2015 the Refugee Review Tribunal affirmed the department’s decision not to grant him a bridging visa.
The applicant applied for a protection visa [in] June 2015.
The applicant attended an interview with the delegate [in] September 2015, and provided additional information in support of his claims to the delegate. He has provided no additional information before this hearing.
Claims:
The applicant claims that a land dispute arose because he is his father’s only son and his father and a childless uncle were the only children from his paternal grandfather’s first marriage. The applicant claims that there are [a number of] children and [a number of] grandchildren from his paternal grandfather’s second marriage. The applicant claims that his father inherited [land] from his grandfather and that before the land dispute arose he and his father used to grow [produce] on this land. The applicant claims that the other branch of the family began to encroach on this land and there were arguments.
The applicant claims that this land was customary land (meaning that there was no legal title) and that disputes in relation to such land are dealt with by the village chiefs and the council. He has said that there are no government services in his village and no power. The applicant claims that the council called a meeting to mediate in the dispute but that at this meeting the members of the other branch of the family assaulted his father. The applicant claims that they told him that if he pursued the matter they would attack him. The applicant claims that he approached the police but they told him that anything to do with customary land had to be sorted out by the village chiefs and the council and that they could not do anything.
The applicant claims that he pulled out the crops planted by the other branch of the family on the land. The applicant claims that the members of the other branch of the family came to the conclusion that he was only one person and that rather than wasting time arguing with him they should kill him. The applicant claims that they came with killing [weapons] and they took his land by force. The applicant claims that a councillor secretly informed him of this and told him that he had to run away otherwise he would be a dead person.
The applicant claims that at this time his father had moved to live with a good friend from his father’s youth in a different [village]. He said that his own village was also under [the friend’s village] but the village where his father was living was about [distance] from his own village and their traditional land. The applicant claims that they had not worried about his father because his father was about to die but they had been looking for the applicant. The applicant claims that he had decided to run away and he had concluded that the only place which was going to protect him was Australia, the ‘Father Country’. He has said that he went to Port Moresby where he obtained a passport and visa. The applicant claims that he would not be safe anywhere in Papua New Guinea because the members of the other branch of the family will do everything possible to kill him so that his descendants will not be able to claim the land.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicants’ protection visa application forms completed and signed [in] June 2015, lodged [in] June 2015 (“visa application”.
- The applicants’ identity documents being a certified copy of passport;
- The protection visa decision record (‘delegate’s decision record’) of [June] 2016;
- The review application form which did include a copy of the delegate’s decision record;
- The decision of the Tribunal (differently constituted) of 26 August 2016;
- The decision of the Federal Circuit Court of Australia of [2017];
- Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Papua New Guinea, published on 10 February 2017.
Country of reference / receiving country
The applicant claims to be a PNG national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Hearing:
The applicant attended the hearing on 1 November 2017. He was unaccompanied.
The Tribunal recorded for the record that the applicant found himself before this Tribunal as a result of a Federal Circuit Court decision. The delegate had decided that the applicant was not a refugee and was not entitled to complementary protection. The Tribunal (differently constituted) had affirmed the delegate’s decision. The applicant appealed the decision of the Tribunal. The Federal Circuit Court upheld one of the applicant’s grounds of appeal.
The Tribunal asked the applicant whether the application forms were written and prepared by the applicant. He said they were. The applicant confirmed that he had signed the application forms himself.
The Tribunal noted to the applicant that the signed application form was very short of detail and that many sections had been answered with a “N/A”. The Tribunal said to the applicant that it would seek to clarify some of the applicant’s background information.
The Tribunal discussed with the applicant his application form and was able to elicit the following information:
·The applicant was engaged, but is no longer.
·The applicant pulled out of [school].
·The applicant went straight to [a college] straight after he pulled out of school.
·He completed his [studies] in 2005.
·He worked as [Occupation 1] from 2005 until 2011 in [District 1], which was [distance] from his home village.
·After arriving in Australia, he helped out at [a church] consistently.
·He was taken into detention [in] June 2015 in [City 1]. From there, he was sent to [other Australian cities] then he got his bridging visa and went back to [City 1].
·He was in detention for one year, two months.
·He lived with [Mr A] from 2011. Mr [A] lived first at [City 2] and then they moved to [Town 1] shortly after he arrived. He stayed with Mr [A] until he died in 2014.
·He became engaged to Miss [B] [in] September 2014. They stayed together for six months.
·Miss [B] went back to PNG when the applicant was put into detention. She has now married.
The Tribunal spent some time discussing the information revealed by the delegate about his [temporary] visa application. The Tribunal noted that the documents supporting the visa application were, after expiry of the visa, determined to be fraudulent – being the bank statement, the letter from his employer and invitation to visit Australia. The Tribunal asked the applicant to explain this. At first the applicant was quite evasive about this issue. He gave the impression that he did not understand the question. The Tribunal persevered as it was quite certain that the question had been clearly asked. Eventually, the applicant explained that [a man] called “[Mr C]”, arranged his passport and visa and that the applicant gave all of his documents to him. The Tribunal queried the applicant about [Mr C]. The applicant did not know [Mr C’s] surname and could not explain anything further about the documents. This surprised the Tribunal as it was not news to the applicant as it had been referenced in the delegate’s decision, a decision the applicant had appealed from.
The Tribunal asked the applicant about the background to the land in dispute. The applicant said that his father had worked the land and earned all of his income from the land. He had no other job. The applicant said that he worked as [Occupation 1] and was looked after by [Employer 1]. He had no reliance on the land or for income from it.
The Tribunal asked the applicant to articulate why he had come to Australia. He said he came to Australia because of his problems with the land dispute. He explained the dispute as one where the winner gets the land, and the loser dies. He said it was all cultural. The police had told him they couldn’t help him as the Council had to fix it. He said the Council had told him to “run for his life” and [Mr C] told him to go Australia – it was the only country that he could go to.
The Tribunal confirmed with the applicant that the only reason he came to Australia was because of the land dispute. There was no other reason, as he had a job as [Occupation 1]. The Tribunal asked the applicant how he became involved in the land dispute given that he was [Occupation 1] and lived [distance] away. The applicant said that he had heard of the dispute, so he came back from [District 1] to the village to see for himself. He went to the land and saw that crops had already been cut down. Everything had been cut down. He said he took this to mean, in accordance with “traditional mindset”, that the land has already been claimed and that he, the applicant, was to be killed.

The applicant claimed that he then went to the police, but they referred him to the Council. He said the Council then went to the land and tried to sort it out, but when they got there, they saw the family with [weapons] and they left and told the applicant that he needed to leave the country.
The Tribunal confirmed that the land had already been claimed some time before he went back to see it for himself. The applicant agreed. The Tribunal then confirmed that the family had never gone to [District 1] after taking the land? They had never attempted to seek the applicant out? The applicant confirmed that this was the case.
The Tribunal asked the applicant about his father’s whereabouts during this. The applicant said his father lived on the land itself. He said that when the family started cutting down trees, one of his father’s friends took him away. The Tribunal noted that the applicant had told the delegate that it was an uncle that took his father away. He now lives in a house about [distance] away. Asked whether his father had any fears for his safety, the applicant said the family would leave him alone as he was old.
The applicant stated that the family would be worried that he, the applicant, will come back and claim the land.
The Tribunal read to the applicant his written claims as summarised in paragraphs 29 to 32 above. He agreed those claims were accurate but for two things:
·There was no assault of his father, as his father had already left the land.
·He did not go back to the land and pull out the crops of the family.
He could not explain how these errors were made. The Tribunal noted that the applicant had told the delegate that his father was “punched” during the mediation process. He said his father wasn’t there.
The Tribunal confirmed that the applicant came to Australia [in] April 2011. It confirmed that a friend of his asked [Mr A] of the [named church], to look after him. The Tribunal confirmed that the applicant stayed with [Mr A] until [Mr A] died in 2014. It confirmed that he assisted [Mr A], who was disabled, for example by driving him around, but that [Mr A] did not give him advice about how he could remain in Australia lawfully. The Tribunal confirmed that after [Mr A] died the applicant obtained employment for which he was paid in cash and he became engaged to a young woman from Papua New Guinea, [Miss B], whom he met in 2014. The Tribunal confirmed that she advised him to apply for a protection visa but that he was still in the process of preparing his application when he was located and detained.
The Tribunal confirmed that the applicant, in support of his application, produced to the Department a copy of a letter dated [in] August 2015 from [Mr D] who said that he was [a senior official with Employer 1] in Jiwaka Province. He said that the applicant had completed a [diploma] and had been [Occupation 1] at [Employer 1] in [District 1]. [Mr D] said that in late February 2011 the applicant had ‘faced some serious allegations of life or death which thus forced him to leave his homeland’. He said that a crisis had erupted within the applicant’s family over a land dispute, that the applicant had been attacked by his own clansmen with [specific weapons] and that he had fled for his life. [Mr D] said that such disputes over land were uncontrollable and could not be solved by the police or chief leaders because people’s livelihood depended heavily on land.
The Tribunal confirmed that the applicant had also produced a copy of a letter dated [in] August 2015 from [Councillor E] who said that he and other elders including the village chief had witnessed the incident in which people with [a wide range of weapons] had tried to kill the applicant so he had fled for his life and had never returned to the village.
The Tribunal confirmed that the applicant had also produced a copy of a letter dated [in] July 2015 from [Mr F] of the Royal Papua New Guinea Constabulary who said that he had known the applicant for seven years and who referred to his work as [an Occupation 1] of [Employer 1]. He said that the applicant had left his village [in] January 2011 because [a number of] men armed with [specific weapons] had confronted him and had taken his land by force. Mr [F] said that customary land disputes were very sensitive issues in Papua New Guinea and that the police could not deal with them. He said that it was a tradition that they were dealt with by village chiefs and elders. He said that the people who had taken the applicant’s land had threatened to kill him and that fearing for his life he had left Papua New Guinea.
The Tribunal confirmed that the applicant had also produced a copy of a letter of support dated [in] June 2015 from Mrs [G] and Mr [H] referring to what the applicant had told them of his claims and stating that they had found him to be well-mannered, respectful, very pleasant and kind to others.
The Tribunal confirmed that the applicant had also produced a copy of a letter from Ms [I] who said that she was the sister of his fiancée at the time, [Miss B]. She said that she wished to confirm their engagement and the fact that the applicant was [in Occupation 1 with Employer 1].
The Tribunal confirmed that the applicant had also produced a copy of his birth certificate.
The Tribunal confirmed that the applicant, in a document described as a statutory declaration made under [named legislation] (although that Act is a [State 1] Act and the applicant was in [State 2] at the time) had said that he wished to apologise for overstaying his visa. He referred to his evidence that he had been [in Occupation 1] for [Employer 1] in Papua New Guinea and that he had had a problem because of a land dispute. He said that [a number of] men had come with weapons and had attacked him and taken his land by force. He said that the police had told him that they could not do anything because it was customary land and that it was a matter for the elders and the council of the tribe. He said that his councillor had warned him secretly that he should run for his life.
The Tribunal confirmed that the applicant had also produced to the first Tribunal hearing a copy of a statutory declaration made by Councillor [E] [in] September 2015 in which he said that he recalled that in late February 2011 the applicant had been attacked by members of his extended family with [various weapons] and that the councillor did not guarantee his safety anywhere in Papua New Guinea.
The Tribunal confirmed that the applicant had also produced to the first Tribunal hearing a copy of a statutory declaration made by [Mrs G and Mr H] [in] July 2016 repeating what they had said in their letter of support dated [in] June 2015. They said that the applicant had strong Christian faith and that they would be extremely concerned for his welfare and the safety of his life should he return to Papua New Guinea.
The Tribunal confirmed that the applicant had also produced a photograph of men with [weapons] (folio 113 of the first Tribunal’s file 1610885).
The Tribunal referred to the letter produced to the Tribunal at the hearing, being another letter from Councillor [E], of [Jiwaka Province], PNG, dated [in] October 2017. This letter stated that the current threats to the applicant’s life remain the same. It stated that with the current situation based on traditional mindset, his enemy plans to eliminate him so they can continue to live on his land as he is the only child in the family. Furthermore, his generation may not be around to reclaim the land in dispute.
The Tribunal asked the applicant when he left the village. He said he moved to Moresby in March 2011.
The Tribunal said to the applicant that it wanted to discuss the inconsistencies between the letters of support and his own evidence and claims, and in particular the inconsistencies between the dates of certain events and the actual attacks themselves.
Dealing with the dates first, the Tribunal noted that the police officer, in his letter, stated that the applicant had left his village [in] January 2011 after being confronted by [men] with weapons. However, [Mr D] and the Councillor said that the confrontation had happened in late February 2011.
The applicant replied saying the policeman must have been confused, because the day in January was when the applicant had gone to the police to complain that the crops had been cut down (that the land had been claimed). The Tribunal noted that the letter was quite specific and referred specifically [to] January.
The applicant said he went to [Mr D] in February as he had to tell him what had happened and why he had to leave. The Tribunal noted that the letter was written in 2015 and was a record of what he had been told.
The Tribunal then discussed the issue with what actually happened on those dates. The applicant had earlier said, which is consistent with what he had told the previous Tribunal that he had not actually been in the village when the [people] (the family) had come to take the land by force. In fact the applicant had said that he had heard of the claim by the family and went to see for himself and it was then that he saw that his father’s crops had been cut down. The applicant had further said that the family turned up to the council meeting which is when the photo was taken by the Council.
However, the policeman said in his letter that the [men] with [specific weapons] had confronted the applicant.
The councillor said in his statutory declaration, that he had actually witnessed the applicant being attacked by members of his family with [a wide range of weapons] and nearly killed the applicant.
The applicant responded to this by saying that the Councillor witnessed the council meeting, not him being attacked.
The Tribunal repeated that this is what the letters and statements had said. The applicant said he was telling the Tribunal the truth about what happened.
The Tribunal discussed the photo with the applicant. The Tribunal asked what its significance was. He said it was evidence of what happened at the council meeting. The Tribunal stated that the photo was problematic, as it doesn’t actually reference anything. It could be a photo of anything. As the previous Tribunal noted, it only shows [certain weapons] which the councillor does not actually refer to, and the councillor does not refer to the council meeting at all, rather the attack on the applicant. The Councillor does not refer to the photo at all in his statement. The Tribunal explained that accordingly it could place no weight on the photo at all.
The Tribunal asked the applicant again about when he went to Port Moresby. He said he went in March 2015. The Tribunal asked how he got there. The applicant said when he was told to leave, he left the village and went back to [District 1]. Then he went by bus to Lai, stayed there for a few weeks and then got a ticket to Moresby. He stayed a few weeks in Moresby. He stayed at the house of a friend of [Mr C]. The Tribunal noted that he had told the previous Tribunal that he stayed a couple of months in Moresby and that he had stayed at the houses of church members. The applicant stated that he had had no contact from the family. He was worried that if he was seen, the family would be told and they would come for him.
The Tribunal advised the applicant that it had some concerns about the timeline for applying for the protection visa, given the fears that he had. The Tribunal noted that he arrived [in] April 2011. After the expiry of his [temporary] visa, he was unlawful for four years. The Tribunal asked the applicant why it took so long for him to make a protection visa application, noting that he made the visa application over four years after arriving in Australia. The Tribunal explained that in light of that delay, it might form a view as to the genuineness of the applicant’s claims of fear of returning to PNG.
The applicant argued that [Mr A] didn’t tell him what to do. The Tribunal noted that the applicant was working [and] meeting a lot of people through the church. He also noted that the applicant had been working on farms whilst in Australia and that surely someone during the period of four years had mentioned the existence of protection visas. He said he was told about protection visas when in detention.
The Tribunal reminded the applicant that he had previously said that he learned about protection visas from his fiancé [Miss B]. He agreed that he had said that and that [Miss B] had told him that he had to secure documents from PNG before he lodged his claim.
The Tribunal noted that he was engaged to [Miss B] in September 2014 having met her sometime before that, but he didn’t make his claim [until] June 2015, just a couple of weeks after being placed in detention. That amounted to about a year before he made his claim. How did it take a year to secure the documents he needed? The applicant said that was how long it takes to get documents out of PNG – there is no power, copiers break down, cars break down. The Tribunal discussed the implausibility of that response. The Tribunal also noted that not a single document was received from PNG prior to making the protection visa application. He replied to this by stating that [Miss B’s] ex-boyfriend who lived in [Town 1] dobbed him into the Department.
The Tribunal discussed country information with the applicant about abandoning land in PNG – the same country information the delegate discussed with him during his interview.
Country information reports that approximately 97 per cent of land in Papua New Guinea is 'customary land', and so is not privately owned.[1]
[1] CIS956B8881589: Oliver N & Fingleton J 2008, 'Settling Customary Land Disputes in Papua New Guinea', Making Land Work Volume 2: Case studies on customary land and development in the Pacific, Australian Agency for International Development, June, p. 226; Also CIS956B8881589: Hunt, C 2002, Production, privatisation and preservation in Papua New Guinea forestry, International Institute for Environment and Development.
Papua New Guinea has legislation in regards to inheritance, but this does not apply to customary land.[2]
[2] C1S21321: Stewart, C 1993, Law, Ethics and HIV/AIDS: Existing Law of Papua New Guinea, Law Reform Commission and Department of Health.
As a general rule, an individual's rights to land arise from membership in a kinship group. But rights to land also depend upon being an active and participating member of the group, and thus can be lost by clan members if they move away for too long, or acquired by outsiders if they move in and make themselves useful.[3]
[3] CROD9DEFA170: Inheritance law — Customary law — Rights to land — Land dispute mechanism. 30 May 2016
Capacity of children to contribute to the development of the land and contribute to 'wok' was often linked with the likelihood that they would receive their inheritance. It was also noted by many community members that children required knowledge about their land boundaries and family histories. Without this knowledge, or the ability to wok, children were considered at risk of being denied their land, or access to resources when their parents died. In particular, young children and those living away from their land were identified to be particularly vulnerable. There were many reasons why some children are absent from their land, or unable to contribute to `wok'.[4]
[4] CISD49C2F4593: A study of the Inheritance Rights of Children Affected by HIV and AIDS and other
The same report observes that the children who live with family in urban settings were also unable to contribute to the cultivation of their land, and unless their parents made sufficient financial contributions (or returned occasionally to work in the gardens); these children are often denied the right to inherit their land when their parents die and they return to their ‘pies. In addition, very young children were identified to be at risk of having their land re-distributed to other, older members of the family before they became old enough to wok and claim it as their own.
Another source reports that "ownership of customary land is an aspect of long-run relations that involve many reciprocal obligations. These obligations affect customary rights to land and become relevant to the equities of land disputes”.[5]
[5] CIS23EDB30454 Robert D Cooter, "Inventing Market Property: The Land Courts of Papua New Guinea", Berkeley Law, 25,01 January 1991
The Tribunal noted that neither he nor his father had been anywhere near the land since 2011, and in his case, probably since 2005 when he became [an Occupation 1]. Why could it not be argued that the land had been abandoned? And if it could be said that it had been abandoned, why would there be a need to kill the applicant?
The applicant reiterated the traditional mindset argument – that the family will believe that the applicant will engage his generation to fight back to claim back the land. The Tribunal reminded the applicant that he is an only child, that he is powerless, and he knows that and his family know that, yet his family is big and will only get bigger, so why kill him? The applicant said that he could tell his children and their children to go back and fight. But didn’t the Council tell him that his family was too big to fight against.
The Tribunal considered the possibility of abandonment. The applicant and his father had not been the land in years and at no time had offered any funding for the maintenance of the land. The father lived only one kilometre away but had had no further involvement with the land. He had made no effort to claim it back. The applicant said the father was old and that the family believed he would be dead soon.
The Tribunal asked the applicant, that if the Tribunal accepted the land abandonment argument, what he would do if he had to return to PNG. The applicant replied that he would have nothing, as the income from the land was gone.
The Tribunal reminded the applicant that when he was in PNG, he worked only as [an Occupation 1]. When he had been asked earlier, he replied that he was only ever [an Occupation 1] and that he had never been involved with the land and had never relied on the income from the land. The Tribunal suggested that he could go back to PNG and be [an Occupation 1] with [Employer 1] that he has never left.
The applicant replied that [Employer 1] will never take him back because of customary laws that say if the applicant is killed in the [workplace] by his family, the [workplace] will be responsible to pay compensation. This is based on the applicant’s view that the family will still be coming after him.
The Tribunal also reminded the applicant that he has experience in farming (gained in Australia). The applicant replied there is no work in PNG. He also said that there were 800 languages in PNG and that he wouldn’t be able to communicate. The Tribunal reminded the applicant that he spoke English and also pidgin like the majority of the country. He had experience, skills, and a language advantage that would see him able to gain employment or at least the support of [his previous employer].
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has strong reservations about the credibility of the applicant’s claims. His inability to remember dates of some events yet have a crystal clear recollection of others concerned the Tribunal. The numerous inconsistencies in his own evidence in this hearing, together with the inconsistencies as between the interview with the delegate, the hearing with previous Tribunal, this hearing and his written claims, and the implausibility of some of his responses to other questions, causes this Tribunal to have no confidence in the integrity of the applicant’s claims. Add to this the implausible explanation as to the fraud involved in the documentation supporting his initial [visa] and his willingness to ignore Australia’s immigration laws by remaining unlawful for four years, the Tribunal has formed the view that the applicant’s claims must be reviewed with the utmost scrutiny.
The Tribunal noted the process for the making of the application, and specifically noted that he arrived [in] April 2011. After the expiry of his [temporary] visa, he was unlawful for four years.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The applicant claims that his father inherited a parcel of land from his twice married father (applicant’s grandfather). The family of the second wife inherited an adjoining parcel. Despite the multiple interviews and hearings the applicant has taken part in, there has been no evidence adduced of the ownership or even the existence of this parcel of land. However, the applicant has been consistent in his written statements and evidence in interviews and hearings about the fact of the land and how it was inherited. The Tribunal will come back to this issue later.
The applicant claims that the other family began to encroach on his father’s land and there were arguments. His written claims and evidence to date has been that the family (being [a number of] men) forcibly took the land from him with weapons. Contradictory evidence stated that he heard about a land claim and he went to see it for himself. When he arrived, he saw the crops had been cut down, which he took to mean a claim had already been effected.
The Tribunal discussed with the applicant its concerns about the multiple inconsistencies between his claims and evidence adduced at hearings about the land dispute which he has said forced him to leave Papua New Guinea. He has claimed that there were a number of meetings as the dispute escalated until the final incident when the members of the other branch of the family came and took the land by force. At the hearing he said that he had not been in the village at the time of the family took the land and that it had been at this time that the councillor had warned him that he would be a dead person if he remained there. As the earlier Tribunal had done, this Tribunal discussed with him the contradictions in the documents which he produced in support of his claims. Those various documents clearly indicate that he was present in the village at the time of this final incident. As discussed, the letter from a police officer, [Mr F], said that [a number of] men armed with [specific weapons] had confronted him (the applicant) and had taken his land by force. The councillor [said] in his letter that his (the applicant’s) opponents had attacked him with [a wider range of weapons] and had tried to kill him so he had fled from his village and never returned. In his subsequent statutory declaration the councillor repeated that the members of the other branch of the family had used [a wide range of weapons] and had nearly killed the applicant. The letter from [Mr D] said that the applicant had been attacked with [specific weapons] which had prompted him to flee for his life.
The Tribunal discussed again that there is a clear inconsistency between the applicant’s evidence and what is said in the letters which he produced and that this inconsistency casts doubt on whether he is telling the truth about the land dispute. The Tribunal highlighted that the councillor had said in his letter that he had personally witnessed the incident and, as referred to above, he said that in this incident the applicant’s opponents had attacked him and had tried to kill him whereas the applicant in this hearing has said that he was not even there.
The applicant tried to explain at this hearing that the councillor had taken the photograph which he had produced which he said showed the people who had taken his land. As the Tribunal discussed with him, the photograph shows people armed with [certain] weapons but there is no reference to date, to where they are or who they are. The councillor does not reference the photo in his letter and the types of weapons [photographed] are inconsistent with the description by the councillor of the weapons actually used by the other family which included [a wide range of weapons]. The Tribunal would have expected the councillor to at the very minimum reference the photo that he allegedly took in his letter.
The Tribunal considered the letters from Mrs [G] and Mr [H] was accorded them little weight, as they only restated what the applicant had told them in the past. The Tribunal also noted the letter from Ms [I] which served to confirm that the applicant was engaged to Ms [B] at the time of its writing and that the applicant was [in Occupation 1].
The Tribunal also discussed with the applicant its concerns about the relevant timelines of the various events and the inconsistencies therein. The applicant himself has claimed that it was in January or February 2011 that the members of the other branch of the family came and took his land by force. As discussed with him, the letter from the police officer, [Mr F], says that he left his village [in] January 2011 whereas the letter from [Mr D] and the statutory declaration from Councillor [E] both say that the incident in which the applicant was actually attacked took place in late February 2011. The applicant said that [January] 2011 had been when he had gone and talked to the police officer about the family having claimed the land. He said that the police officer had written this because this had been the time which had been in the record when he had complained to the police officer and the police officer had told him that he could not help him. He said that the date given by the councillor and [Mr D] had been when he had come to Port Moresby, the date that he had told them. However, as further discussed, the letter from the police officer says that it was [in] January 2011 that the applicant left his village because [a number of] men armed with [specific weapons] confronted the applicant and took his land by force. Once again the Tribunal stressed its concerns about this inconsistency in the evidence, which as discussed with the applicant, casts doubt on whether he is telling the truth about the land dispute and when and how it happened.
The Tribunal also discussed with the applicant its grave concerns that, although the applicant came to Australia [in] April 2011, he did not apply for a protection visa [until] June 2015. [The applicant] has said that while he was staying with [Mr A], Mr [A] did not tell him about protection visas. The Tribunal suggested that as he was working in various locations, it was surprising that no one had mentioned protection visas to him. He said he became aware of them when he was in detention, but then the Tribunal reminded him that when he met his girlfriend (to whom he became engaged in September 2014), he became aware that he could apply for a protection visa and he started trying to get the documents together. He explained the difficulties he had in doing so, including reasons such as photocopiers and cars breaking down, but as discussed with him, the only documents which he has produced in support of his claims are documents which he has obtained after he was detained. As discussed with him, there is nothing in the evidence which he has produced to suggest that he actually did anything about getting any documents before he was detained. He instead chose to reply that his ex-fiancé’s ex-boyfriend had dobbed him in to the authorities. The Tribunal expressed its concerns that if he really feared that he would be killed if he went back to Papua New Guinea, the Tribunal would have expected him to have done something about regularising his status earlier than he did. The fact that he did so only after being detained cast further doubt over whether the applicant had the genuine fears he claimed he had.
For the reasons given above this Tribunal does not accept that the applicant is telling the truth about the land dispute and in particular about the timing of the incident in which he claims [members] of the other branch of his family armed with weapons came and took his land by force or indeed about how the other branch of the family came to have possession of his land.
The Tribunal does accept that, as he has claimed, he fears that he will be killed by members of the other branch of his family (or people acting on their behalf) because they fear that he or his descendants will try to reclaim the disputed land. The multiple concerns the Tribunal has about the inconsistencies and contradictions between his claims, his evidence, and evidence produced in support of his claims, simply have not been addressed to the extent required to satisfy the Tribunal that the applicant can be believed.
The Tribunal has been unable to accept any of the applicant’s claims in relation to the land dispute or the threats from the other family.
This causes the Tribunal to have grave doubts about whether the applicant’s claim in relation to the actual existence of the land is credible and whether the land has been taken from his father. As mentioned earlier, there is no evidence that the applicant’s father actually is entitled to the land. It has not been beyond the applicant to engage in the use of fraudulent documentation or ignore our immigration laws. On the basis only that the land is customary land (and that production of legal title may be impossible) and that the applicant has been relatively consistent in relation to how they became entitled to it, the Tribunal accepts, in giving the applicant the benefit of very considerable doubt, that the applicant’s father is, or was, entitled to the parcel of land. Similarly, in relation to the claim that the land has been claimed by the other family, the applicant has been relatively consistent in claiming that the other family has taken possession of the land, albeit not convincing in how they came to claim it or when they claimed it. Again, and having been afforded the benefit of the doubt, the Tribunal accepts that the other family has taken possession of the land and did so at some time prior to March 2011.
The Tribunal has considered whether the applicant may have a future entitlement to the land which has been denied to him by the other family taking possession of the land, and thereby denying him of an income stream.
The Tribunal discussed with the applicant how land may be considered to be abandoned in PNG. The Tribunal is prepared to accept that:
·the father having vacated the land in 2011;
·the applicant, having lived since 2005 in [District 1] and has been absent from PNG since 2011; and
·neither have made any financial contribution to the maintenance of the land,
has given the other family cause to believe that the land has been abandoned. If the applicant is to be believed in relation to the Council advising him to leave the country, then it can be reasonably imputed that the Council believes that it cannot award the land to the applicant, or his father or his descendants. The Tribunal further notes that the father still lives [distance] away and has experienced no threats or issues. The Tribunal finds that the land has been abandoned.
Having found that the land has been abandoned, the Tribunal does not accept that the other family has cause to threaten or kill the applicant. The applicant has agreed that the other family is very large and that it is just himself “on his side of his family’. By seeking to stay in Australia, he has conceded that he will not be making a claim on the land. He has not sought to claim the land and the Tribunal accepts that he will not make a claim for the land in the future. By firstly leaving the village to work elsewhere, and then leaving the country, and knowing that it is just the applicant as an individual up against a family of their size and might, the Tribunal finds that the applicant would not perceived by his other family that he will take action to claim the land. To this end, the Tribunal has considered the letter and statement of [Councillor E] . In that letter and statement the Councillor states that his enemies plan to eliminate the applicant so that they can continue to live on his land. The Tribunal gives no weight to this statement given the inconsistency in this statement as to the Councillor having also stated that he witnessed the attack on the applicant by the family, an attack that the applicant himself denies actually happened.
The Tribunal confirmed with the applicant that this was the only reason he came to Australia and were the only claims he had. This being the case, the Tribunal does not accept that he has a well-founded fear of persecution as required by the definition of a refugee in section 5H of the Migration Act.
The Tribunal has not accepted the applicant’s claim in relation to the land dispute. Therefore, it follows that the Tribunal does not accept the applicant’s explanation as to why [Employer 1] would not employ him again if he were to return to PNG. The applicant has never relied upon any income from the land and has been [in Occupation 1] in [District 1] since he left school. He said [Employer 1] had supported him. The Tribunal accepts that if the applicant had to return to PNG, he could find employment with the [same employer]. There would not be any denial of basic services and he would not be denied the capacity to subsist.
The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to PNG.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his land dispute with his family, or the abandonment of the land, or any other reason if he returns to PNG now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to PNG. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
Having regard to the Tribunal’s findings of fact above the Tribunal does not accept that the applicant fled from his village and Papua New Guinea because he feared for his life as a result of a land dispute.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to PNG now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to PNG now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG that there is a real risk that he will suffer significant harm.
Overall conclusion:

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 s.36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins
Member

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

' Vulnerable Children", Children's life skills, knowledge and participation, page 11,United Nations Children's Fund
(UNICEF), 01 December 2008

[2017] AATA 3011

27 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal