1710577 (Refugee)

[2018] AATA 3891

1710577 (Refugee) [2018] AATA 3891 (20 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710577

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Michael Hawkins

DATE:20 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 20 July 2018 at 3:14pm

CATCHWORDS

Refugee – Protection Visa – Papua New Guinea – Political opinion – Failed candidate for 2012 elections – Threats of harm from opposition tribes – Extensive travel history between PNG and Australia – Delay in applying for Protection Visa – Credibility concerns – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994 (Cth), 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

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Papua New Guinea, applied for the visa on 9 December 2016. 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.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

8. ‘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.

9. 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

10. 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

11. 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

12. 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

13. 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:

14. The applicant’s protection visa application form is very short of detail. Some parts of the form have been left uncompleted and some questions have not been answered, including his date and place of birth.

15. The applicant claims to be [an age] year old man from [the Highlands Region in], PNG.

16. The applicant is married, though his forms do not disclose whether he continues to be married. He has [number] children.

17. The applicant provided his extensive work history. He has worked for the Government, [Organisation 1], and been self-employed.

18. The applicant arrived in Australia most recently [in] September 2016, under Passport No [No.], issued [2015] and expiring [2020] pursuant to a [temporary] visa granted on 13 October 2015 and expiring 9 December 2016.  

19. The applicant applied for a protection visa on 9 December 2016.

20. The applicant attended an interview with the delegate on 3 March 2017, and provided additional information in support of his claims to the delegate. He provided an additional submission on 21 August 2017 before this hearing.

21. The applicant has an extensive travel history between PNG and Australia.

22. The applicant applied for a [different temporary visa] lodged at Port Moresby post on 14 March 2012. It was granted on 19 March 2012.

23. The applicant arrived in Australia [in] March 2012.

24. The applicant departed Australia [in] March 2012.

25. The applicant arrived in Australia [in] February 2013.

26. The applicant departed Australia [in] February 2013.

27. The applicant applied for a [temporary] (OFFSHORE) visa on 30 September 2015. It was granted on 13 October 2015.

28. The applicant arrived in Australia [in] April 2016.

29. The applicant departed Australia [in] July 2016.

30. The applicant arrived in Australia [in] September 2016.

    Claims:

    Summarised from written claims:

31. The applicant claims that he left PNG for political reasons, and his beliefs caused problems for people who saw him as a 'blockage to their quest for power'.

32. The applicant claims that he was a candidate for the [seat] of [Seat 1] in [Province 1], Papua New Guinea (PNG), in the 2012 national elections, and his candidacy was not 'well received' by his family, his in-laws, village and community as other candidates had spent large amounts of money to buy votes.

33. The applicant claims that he was threatened, abused, and 'nearly killed'; his safety, as well as his family's safety, was threatened.

34. The applicant claims that he has unintentionally caused problems for people because of his political beliefs. The 'culture of payback killing' is strong in the Highlands region where the applicant resides, and his enemies would attempt to 'get even' with him by killing or injuring him because 'they're pride has been hurt'.

35. The applicant claims that his supporters were 'harassed and abused', and people from his 'camp' engaged in a physical fight with supporters of other candidates. His election posters were [damaged].

36. The applicant claims that that he was 'lucky to be alive' as his attackers were aware that his father's tribe would retaliate if they did anything to the applicant.

37. The applicant claims that he did not seek police help as they are corrupt.

38. The applicant claims that he did not relocate as he would be 'tracked down', and he would be 'more vulnerable' to attacks. He still had supporters in his village who are 'prepared to sacrifice their life for me.'

39. The applicant claims that he would be harmed if he returned to PNG.

    Summarised from post-interview with delegate written submission:

40. The applicant claims he is 'vulnerable to attack, harassment and intimidation' due to his involvement in the 2012 elections and party politics; he was [a senior member] of the PNG [Political Party 1].

41. The applicant claims his safety was at stake during incidents in 2012; at [a meeting] of the PNG [Political Party 1] in [Seat 1] where he 'had to tell off the relative of [a prominent member]' over some party issues. His actions were 'thwarted' by tribesmen of the [prominent member]; as the applicant was from a rival clan. Plans to attack me were revealed by my [Relative A] who is married to the tribe.'

42. The applicant claims that after he was nominated to [Seat 1], he learned that members of his extended family and villages benefitted from acts from other candidates and a former Member of [Seat 1]. The applicant's candidacy was not 'well received' by his extended family and village as he was viewed as an 'obstacle' and 'inconvenience.'

43. The applicant claims he did not have millions in PGK currency to buy votes, and therefore people were 'angry' about his candidacy and other candidates thought that 'their acts of benevolence' would be wasted if they did not receive village votes. In addition, village tribesmen believed they would lose certain services if the applicant won a seat, and that they would have to repay money or goods if other candidates lost.

44. The applicant claims that this triggered 'many physical confrontations between my supporters and rival supporters.' The applicant's posters were [damaged], and there was anger and resentment to his candidacy.

45. The applicant claims that on polling day, he was told by village elders that he was an 'outsider' and should not interfere in their politics.

46. The applicant claims that he became 'disillusioned' after the elections, and his wife and children suffered from 'ridicule and harassment.' However, he remained involved with the PNG [Political Party 1].

47. The applicant claims that he became the [Position 1] of [Organisation 2], and helped to run [Event 1].

48. The applicant claims that he had been involved in [a certain field] since he left a government [role]. He claims that while he is well-known for his involvement in [that field], his safety was compromised due to his personal political opinions, and his role in 'party politics and elections...'

49. The applicant claims that he would be viewed as a threat to rival candidates and supporters if he returned to PNG, as he would not compromise his 'principles to support corrupt leaders.'

50. The applicant claims that his safety is not guaranteed if he returned to PNG as the independence of the police have been compromised, and they are at the 'disposal of corrupt politicians and those with money.'

    Summarised from pre-hearing written submission dated 21 August 2017

51. The applicant claims that the 2017 PNG National General Elections were marred with violence and destruction. The applicant claims that this year's National General Elections has been the worst in the history of PNG from the start to the end. There was massive destruction to properties, people were injured and killed through fighting between supporters of rival candidates. The highlands region was the worst affected.

52. The applicant claims that [in] 2017, his village of [Village 1] was caught in such election related fighting when supporters of a runner up candidate from the nearby [Tribe 1] in the [Seat 2] Electorate of [Province 1] of Papua New Guinea decided to [check] on the people from [Tribe 2] and harass them. The [elected] Member of Parliament for [Seat 2] electorate hails from [Tribe 2].

53. The applicant claims that his village of [Village 1] is one of the [number] villages comprising [Tribe 3]. And [Tribe 3] and [Tribe 1] are traditional enemy tribes before the advent of christianity and establishment of government rule. The [Tribe 3] tribe is in the [Seat 1] electorate.

54. The applicant claims that “as a result of the incursion of [Tribe 1] into our territory and harassment of our womenfolk, young men from our village retaliated and fighting ensued. The next [day] a full out tribal war ensued with the clans teaming up. The Police went in late to stop the fight and issued an ultimatum to both sides to lay down their weapons (bows & arrows, knives, guns) or face the full brunt of the law. The warring tribes have cooperated but the tension is still high”.

55. The applicant claims that a total of [number] lives were lost. [Number] from [Tribe 1] and [number] from the applicant’s village. The [deaths] from the applicant’s village [included] the [son] of the applicant’s neighbour. He is currently a [student] at [School 1]. The applicant’s [son] is [at] [School 1] as well. The deceased late [Child A] were the only [boys] in our closely knit neighborhood. He had gone to watch the fight from a distance without suspecting that he would be rounded and chopped to death. [The applicant’s son] was trying to go with [Child A] on that fateful day when he was stopped by his mum. The other young boy from the village who had gone with [Child A] is still in Intensive Care Unit with serious injuries from the wounds. The applicant has not heard lately of his status.

56. The applicant claims that the late [Child A] was buried [in] 2017 and [a few days later], a traditional feast to mark the end of the sorrow for late [Child A] was observed.

57. The applicant claims that as a result of the fight his family [have] packed their stuff and moved to live with his in-laws in the neighbouring village.

58. The applicant claims that his sons [are] traumatically affected as late [Child A] was one of the [boys] they grew up with. The other young boy is [Child A]'s younger [brother].  

59. The applicant claims that the fight has disrupted the education of many school kids in the village including [his sons] who go to the nearest [school].

60. The applicant claims that the tension is still high and currently there is a neutral peace and goodwill committee comprising of government officials, church and the community trying to negotiate peace.

61. The applicant claims that the scar of this unwarranted tribal fight will continue to haunt everybody.          

62. The applicant claims that given the current situation he has no desire to go back home but hope that his family will be united with him here. The current government is solely responsible for the current mess. The applicant claims that he is troubled emotionally and physically for his people and family.

    Evidence:

63. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s protection visa application forms completed and signed on 9 December 2016, lodged on 9 December 2016 (“visa application”).
    • The applicant’s identity documents being a certified copy of passport;
    • The protection visa decision record (‘delegate’s decision record’) of 13 April 2017;
    • Submission from applicant dated 21 August 2017;
    • The review application form which did include a copy of the delegate’s decision record;
    • 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

64. 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.

65. 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:

66. The applicant attended the hearing on 2 May 2018. He was unaccompanied and not represented. The hearing proceeded in the English language.

67. The Tribunal asked the applicant whether the application forms were written and prepared by the applicant. He said they were prepared by him. The applicant confirmed that he had signed the application forms himself.

1. The Tribunal noted to the applicant that the signed application form was very short of detail and that many sections had not been answered. The Tribunal said to the applicant that it would seek to clarify some of the applicant’s background information.

2. The applicant confirmed that he is of the Christian faith, of PNG ethnicity and that he speaks English, Pidgin and his mother tongue.

3. The applicant confirmed that he is still married.

4. The Tribunal read out to the applicant all of his claims contained in paragraphs 31 – 62 above. The applicant confirmed that those claims were accurate and complete. He stated that he had no additional claims.

5. The Tribunal noted that on Part B of the applicant’s Protection Visa Application Form, the applicant had included all the names of his family members as being included in the application, and then crossed them out. The Tribunal queried him as to why that was. The applicant replied that he didn’t properly understand the forms and that was why he crossed them out. Asked about his family, he said he hoped to settle here and then have the family come out.

6. The Tribunal made a general remark about the applicant’s claims that they appeared to be historic. Many related to the 2012 elections when things happened during his campaign, but that the election had been run, and he had lost, and there didn’t appear to the Tribunal that he had suffered any harm. The applicant responded that politics is really only active during election times.

7. The Tribunal sought to confirm with the applicant that he was [a senior member] of [Political Party 1] before the election in 2012. He said he was. He said he ran as an independent in the election. The Tribunal asked how that could be. Was that not disloyal? He said [Political Party 1] already had a candidate, and he wanted to run to represent people involved in [a certain field]. He said that after the election, he came back to [Political Party 1] and continued to be [a senior member], suggesting that he was needed to make up the numbers required for the party.

8. The Tribunal again referred to the fact that his claims related to the events during the 2012 election, which was now over. The applicant asked the Tribunal to refer to his email of August 2017, to understand the current position in PNG following the 2017 election.

9. The applicant then referred to the incident at [a meeting] of [Political Party 1], where he was forced to “tell off” relatives of [a prominent member] of the party, and that that caused tensions. He also referred to the statement that his [Relative A] made to him, the [Relative A] that was now married into the opposition tribe, that he was still a target.

10. The Tribunal considered the claims made in the email of 21 August 2017. It noted that that was also an election that had been fought and won, and was now in the past. It noted that there was tensions during the election, which was consistent with country information about tribes and elections, and that there had been one flash point, but that the police were called and the matter was calmed. The Tribunal further noted that there is now in place a neutral peace and goodwill committee comprising of government officials, church and the community trying to negotiate peace.

11. The Tribunal acknowledged that PNG was generally unsafe in some regions, and that it was aware of tribal unrest. It acknowledged the following country information about tribal feuds in PNG – the same country information the delegate discussed with him during his interview. It discussed a summary of the following information from the DFAT Report:

    "Tensions between and within PNG's hundreds of different groups occur frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.

    Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country's population. Conflicts between various groups are complicated by grievances over access to royalties, benefits, and compensation associated with resource extraction projects in the country, whether mining, gas extraction or logging. DFAT is aware of cases in recent years where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby.

    Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs. In December 2014, the Internal Displacement Monitoring Centre estimated there were about 22,500 people displaced within PNG because of tribal warfare (and natural disaster). In particularly serious cases, provincial authorities may request the deployment of the Papua New Guinea Defence Force (PNGDF) and/or the Royal Papua New Guinea Constabulary (RPNGC) Mobile Squads. These forces are known for taking a blunt approach to restoring security, including through burning villages and holding village leaders for ransom until perpetrators have given themselves up.

    The Inter-group Fighting Act (1977) prohibits inter-tribal fighting. Section 11(2) of the Act provides for a punishment of between three and six years' imprisonment where a person has taken part in inter-tribal fighting that has resulted in death. Section 11(3) of the Act provides for a punishment of between 20 to 30 years' imprisonment if a Court determines that an individual is a principal offender or a leader of a fight that results in death. While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they will be subjected to 'payback' violence if they testify."[1]

    [1] DFAT Country Information Report PNG", Department of Foreign Affairs and Trade (DFAT), 10 February 2017

12. In its 2015 Country Report on Human Rights Practices for Papua New Guinea, the US Department of State noted that ‘[s]ocietal violence, particularly among tribes, was commonplace' in that country.[2] Enga Province, in PNG's highlands, is often considered to be a crime hotspot of violence.[3]

    [2] Country Reports on Human Rights Practices 2015 - Papua New Guinea, US Department of State 2016, 13 April 2015, Section 1.d

    [3] "Call for Australian police officers to help bolster law and order in Papua New Guinea", Australian Broadcasting Corporation (ABC) (News), 10 January 2018

13. DFAT also noted that:

    "’Payback' is an act of retaliation that is usually carried out when one group has been harmed by another. In many cases, the perpetrator pays financial or other compensation to the victim or their family... The practice of payback can lead to impunity from mainstream court processes. Many payback cases are not reported, and witnesses are often reluctant to testify out of fear of retaliation from within the group. Traditional compensation via payback is often preferred because it produces immediate benefits and prevents a cycle of escalating 'tit-for-tats'."[4]

    [4] DFAT Country Information Report PNG", Department of Foreign Affairs and Trade (DFA 7), 10 February 2017

14. In regards to state protection, Papua New Guinea has one of the lowest police-to-population ratios in the world.[5] The US Department of State reported that "in many cases police lacked sufficient personnel or resources to prevent attacks or respond effectively" to societal violence during 2015.[6] In addition, Freedom House stated that the RPNGC are "largely ineffective in curbing mob violence, tribal warfare, and other crimes."[7]

    [5] "Papua New Guinea 2016 Crime & Safety Report", Overseas Security Advisory Council, 11 July 2016, p.9,

    [6] Country Reports on Human Rights Practices 2015 — Papua New Guinea", US Department of State, 13 April 2016, Section 1.d,

    [7] Ibid

15. The Tribunal asked about his claim that his family moved in with his in-laws. He stated that his wife and children were now back living in their home in the village, but that they had to be cautious. The Tribunal observed that it seemed that everyone in PNG had to be cautious of their surroundings.

16. The Tribunal said it wanted to address a more general concern about the genuineness of the claims, given that it appeared that the applicant had travelled freely between PNG and Australia on many occasions, had stayed in PNG for extended periods, and that the applicant had taken nearly four years to make his protection claims.

17. The Tribunal noted that the claims of the applicant arose out of the 2012 elections, yet he made no protection visa application until December 2016. Further, he arrived in Australia after the elections in February 2013. The applicant said he wasn’t aware of protection visa applications, and wasn’t aware of the processes involved. The Tribunal noted that the applicant had worked in government for [a long time].

18. The Tribunal referred to the visit in 2012, but agreed that that visit was before the 2012 elections.

19. The Tribunal noted the visit [in] February 2013. After that, he didn’t return to Australia again until April 2016, and then he returned to PNG in July 2016. The applicant then returned to Australia [in] September 2016 and lodged his Protection Visa application on the day that his [temporary] visa expired.

20. The Tribunal noted that the applicant applied for (30 September 2015) and was granted a [temporary] visa on 13 October 2025, yet he didn’t arrive in Australia until [April] 2016.

21. The applicant explained that he didn’t have the financial capacity to return to Australia earlier than April 2016.

22. He restated that he didn’t know the process for protection visas during his February 2013 visit. The Tribunal again noted it was strange that for one fearing harm as he claimed he was, he only stayed in Australia for [a short period of time] and then returned for three years.

23. When he returned in 2016, the applicant stated that he did know about protection visas, but states that he was considering his position. He said he had researched protection visas on the internet, but he was thinking about his family and whether he could leave them. He said he had his family in PNG and still, had the support of his tribe.

24. The Tribunal asked the applicant again about why it took him three months to lodge his visa application from when he arrived back in Australia [in] September 2016. He said he was struggling with an issue of conscience. He was worrying about leaving home and leaving his family. He said it took him a while to accept his position that he needed to seek protection.

25. The Tribunal restated its concerns about the applicant’s return visits to PNG, the length of time he stayed in PNG and the delays in seeking protection, advising that it tended to provide a perception that the applicant’s claims weren’t that genuine. His to’ing and fro’ing seemed more consistent with someone weighing up options, not someone who had serious and genuine concerns for his safety.

26. The Tribunal asked the applicant about his activities in Australia. He said he had been working in [Town 1]. He said that he had completed a [qualification] and was now working in [City 1].

27. The Tribunal asked the applicant again about what actual harm he had suffered at the hands of anyone in PNG. He said he had never been physically harmed. The real harm was the threat that he had heard about through his [Relative A] – that he was a target.

28. The Tribunal then discussed with the applicant the important work he was doing as the [Position 1] of [Organisation 2]. The Tribunal noted the noble work he was doing [and] said that it had read all of the [information] about his work that the delegate had printed and referred to in its decision. It emphasised the point that the applicant was an important man in his region, and that he maintained a [public profile].

29. The Tribunal then suggested that his maintenance of such a [public profile] seemed to contradict his fears of him being a target. He was doing anything but hide from his opposition. He was out and [about], and doing interviews. Yet he hadn’t been harmed at all, he hadn’t been targeted.

30. The applicant replied that he had the protection of his tribe.

31. The Tribunal asked the applicant whether he had considered relocation to Port Moresby, for example. He said he could not relocate, as the other tribe would get him. The Tribunal asked whether the tries would really be bothered to come down from the highlands to get him in Moresby when it seemed so easy for them to get him in his village or when he was [at work].

32. The applicant stated that he felt safer in his own village. He said that the village has its limits though. And he said he doesn’t want to be the reason for tribal unrest.

33. The Tribunal discussed with the applicant a concern it has about his new claims, made in August 2017. It suggested that it might consider these claims to be ones made for the purpose of enhancing his own protection claims. The Tribunal asked whether he had an explanation for raising the claims then. The applicant said it was human nature to raise them. The Tribunal noted the claims, and said that as he wasn’t in PNG at the time, the situation seemed to be a situation of general application. The applicant said that if he was there, he would have been targeted. He said that if the opposition had a choice as between him and anyone else, they would kill him.

34. The applicant said this was how he took the threat from his [Relative A]. That he would be harmed or killed.

35. The Tribunal asked the applicant about his family. He said the boys were going to a new school, but that they had all returned to their house in the village. The Tribunal asked how they were surviving. He said they were [farming]. He said he sent money back to them when he could.

36. The Tribunal suggested to the applicant that a lot of his countrymen come to Australia for economic reasons. It could be said that he may have done that too. The applicant said that he had a job in PNG and didn’t need to come down to work.

    Assessment of Claims and evidence, and findings:

37. 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).

38. 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.

39. 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.

40. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

41. The Tribunal has strong reservations about the credibility of the applicant’s claims. His responses to questions were very general in nature, and his travel history of returning to PNG for extended periods and maintaining a high profile position and appearing in the media whilst claiming to be a target from opposition tribes has lead the Tribunal to form the view that the applicant’s claims must be reviewed with the utmost scrutiny.

42. The Tribunal noted the process for the making of the application, and specifically noted that he arrived in Australia for a second visit in February 2013 and stayed [for a short period]. After the applicant applied for (30 September 2015) and was granted a [temporary] visa on 13 October 2015, he didn’t arrive in Australia until [April] 2016, and then he returned to PNG in July 2016. The applicant then returned to Australia [in] September 2016 and lodged his Protection Visa application on the day that his [temporary] visa expired. The applicant’s conduct in returning to PNG, for one trip that lasted nearly four years after the circumstances that gave rise to his claims, is inconsistent with the expected conduct of one who has concerns and fears for his safety or even his life.

43. 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….”

44. 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.

45. The Tribunal does not accept the applicant’s explanation for the delay of nearly four years in seeking protection from the time his claims arose. The Tribunal considered the applicant’s response that he didn’t know how to apply for a visa, but does not accept it. The applicant is an intelligent educated man who worked in the government for many years. He had the capacity to find out about protection visas. He was living in a community in [Town 1] that had many PNG nationals where visas would have been discussed. And then when he claimed that he did know about protection visas, he had to weigh up over three months (while he was in Australia), another three months (after he returned to PNG) and then an additional three months (after he returned again to Australia) and only lodge the protection visa application on the day that his [temporary] visa was due to expire. The Tribunal is of the view that this delay adds further to its view that the applicant’s claims are not genuine.

1. The Tribunal discussed with the applicant that his very many claims were historic in nature – that family and community weren’t happy with him for running as an independent, that they were worried he might won and that the investments they had made in bribing other candidates would be lost, and that his signs and posters were destroyed. But the election had been run and he had lost. The family and community therefore had no concerns about losing the investments they made in another candidate.

2. He has never at any time suffered any harm.

3. His only fear of harm now is that he is a target, a statement made by his [Relative A] that he took as a threat on his life. Despite that threat being communicated to him, he still has not suffered any direct harm or had a direct threat made to him.

4. Yet, the applicant continued to live in PNG for a further period of nearly four years, and after visiting Australia, he returned to PNG again. When he had the opportunity to move to Australia earlier after securing his visa, he waiting another six months. The Tribunal finds that this is not behaviour of a man who fears harm or for his safety or life.

5. Notwithstanding the threat he believes was made against him, in addition to staying in PNG, he maintained a position of profile, as [Position 1] of [Organisation 2],, a role that had him representing [people in certain occupations] and making public appearances and [statements]. Again, not the behaviour of a man who fears harm or for his safety or life. And he did not suffer any direct harm or have a direct threat made to him.

6. The applicant referred to the turmoil in his village following the 2017 elections, which are now nearly a year ago.

7. At the height of the violence, the police were called (albeit late) and order was restored. The police did their job. Despite the country information referenced above, it appears that the villagers were able to rely on state protection.

8. The Tribunal discussed with the applicant that there was put in place a neutral peace and goodwill committee comprising of government officials, church and the community trying to negotiate peace. That has been in place for nearly a year. Whilst the applicant clams to not be totally aware of the current position, he stated that his wife and children have moved back into the village and are living in their house again.

9. As for the applicant being viewed as a threat to rival candidates and supporters, it was apparent that he was not a threat, as he carried out his role as the [Position 1] of [Organisation 2].

10. For all of the reasons stated above, the Tribunal does not accept that any of the applicant’s claims that he fears harm, or fears for his safety or fears he may be killed are genuine, or genuinely held.

11. The Tribunal considered the country information referenced herein. It acknowledges that there was politically motivated violence during the 2012 election and that it was likely repeated during the 2017 elections and that there is political corruption in PNG, but it does not accept that the applicant’s claims for protection are genuine or genuinely held.

12. 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.

13. 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

14. 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 as a consequence of his running as an independent candidate in the 2012 election, being [a senior member] of [Political Party 1] or from opposition tribes 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

15. The Tribunal has considered the applicant’s claims under complementary protection.

16. Having regard to the Tribunal’s findings of fact above the Tribunal does not accept that the applicant left Papua New Guinea because he feared for his life as a result his running as an independent candidate in the 2012 election, being [a senior member] of the [Political Party 1] or from opposition tribes.

17. The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation or employment in PNG if he was required to return as his family srtill lives in his house and they still earn a living from their farming activities.

18. 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.

19. 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

20. 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

21. 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:

22. 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).

23. 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).

24. 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

25. 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.

    …