1712607 (Refugee)

1712607 (Refugee) [2018] AATA 562 (26 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712607
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Michael Hawkins
DATE:26 February 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 February 2018 at 3:32pm

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Fear of physical harm by wife’s family – Demanded to pay bride price – Threatened to kill – Inconsistent evidence – Delay in lodging protection application – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, r 1.12, 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 on 19 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Papua New Guinea, applied for the visa [in] June 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
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 is [age] year old man from [a town], province of Oro, PNG.
The applicant is of the Christian faith, is of Papua New Guinean ethnicity, and speaks English and Pidgin.
The applicant is married, having married [in] September 2015. He has one daughter and one son. His mother and his father are both deceased.
The applicant states that he attended school on and off in PNG from [year] to [year].
The applicant’s work history reveals he has worked as [an occupation] in Port Moresby from 2009 to June 2014.
The applicant arrived in Australia [in] September 2014, under Passport [No], issued [in] 2014 and expiring [in] 2019 pursuant to a [temporary] visa granted [in] March 2011 and expiring [in] December 2014.
The delegate ascertained that the applicant’s visa expired [in] December 2014 and the applicant remained in Australia thereafter unlawfully.
The applicant applied for a protection visa [in] June 2016.
The applicant attended an interview with the delegate [in] March 2017, and provided additional information in support of his claims to the delegate. He has provided no additional information before this hearing.
Claims:
After he last arrived in Australia, he met a woman in October 2014 who is now his wife.
They lived in her mother's apartment in [an Australian city], and while staying there the applicant received a threat from his partner's relatives in Papua New Guinea (PNG), and they asked for a 'bride price' from the applicant. The applicant wrote that a bride price was a 'huge amount of money paid to a girl's family before getting married.'
They threatened him and told him not to leave his partner and return to PNG without her. While they were unmarried at the time, his partner's relatives believed their relationship was similar to a marriage as they lived together.
His wife's relatives attacked his uncle, who lived in [Port] Moresby, [in] December 2014.
The applicant feared for his life, as well as his family's life in PNG. He feared harm from his wife's father and relatives; they were from Enga Province, and are 'well known' for the bride price, tribal fighting, and killing.
If he returned to PNG, he feared that his wife's father and relatives would kill him or some of his relatives, and destroy their properties.
He stayed in Australia as he could not afford the bride price as it was a large sum of money.
He could not relocate in PNG as it was small, and people could travel between provinces easily. Also, his wife's family had relatives and friends across PNG, and they would search for the applicant.
The authorities could not protect him as the police were unreliable and took bribes; if the applicant did not pay the police to protect him then they would inform his enemies and the applicant would be easily found. Also, the government was corrupt.
After he arrived in Australia, he started attending church in [an Australian town], [in] January 2015.
He married his wife [in] September 2015, and their child was born [in date]. His son was born [in date]. He could not return to PNG as his wife and children need his care.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicants’ protection visa application forms completed and signed and lodged [in] June 2016 (“visa application”.
- The applicants’ identity documents being a certified copy of passport;
- The protection visa decision record (‘delegate’s decision record’) of [May] 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
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 19 February 2018. He was unaccompanied. The hearing was assisted by an interpreter in the Pidgin and English languages.
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. He also confirmed that he had written the statement that accompanied the application form.
The Tribunal discussed with the applicant his application form and was able to elicit the following information:
·The applicant has [several siblings], all living in PNG.
·The applicant confirmed that his parents were deceased.
The Tribunal read to the applicant his claims summarised in paragraphs 23 – 33 above. The Tribunal asked the applicant whether the claims were accurate. The applicant confirmed they were accurate.
The Tribunal noted that the applicant arrived in Australia [in] September 2014. His visa expired [in] December 2014. He applied for a protection visa [in] June 2016, some eighteen months after his visa expired and after moving in with his partner which gave rise to the claims of fear of persecution. The Tribunal asked the applicant why it took him eighteen months to apply for a protection visa. He replied that it took him a while to find the information he needed. The Tribunal reminded the applicant that he had been unlawful in Australia for eighteen months. Why had he not gone to the Department to inquire about what he could do to legalise his presence in Australia. He said he was afraid that he would be sent home, and he was now with a woman.
The applicant stated that he met his wife in November 2014. He stated that they moved in together within a month of meeting. He officially married his partner in September 2015. His daughter was born in [date] and his son was born in [date].
The Tribunal asked the applicant about the residency status of his wife. He stated that she was a permanent resident, acquired through her mother. The Tribunal asked whether he had applied for any other type of visa. He said he had not. His wife told him to get a protection visa.
The Tribunal asked the applicant about his claim relating to the bride price. He was asked when the demand was made. He said it was made in the first week of December 2014. He stated that his wife’s father and family contacted him through his uncle. The family threatened him that he should not return to PNG. Asked to clarify the threat, he said that if he was to leave Australia without his wife, her family would kill him.
The Tribunal asked whether anything happened to his uncle, was he harmed. He said he was not harmed. Just a threat was made.
The Tribunal asked why the family contacted his uncle and not his siblings. He said that his siblings lived in a village, whereas his uncle lived in Moresby. The family knew where the uncle lived.
The Tribunal asked the applicant why the family contacted the uncle and didn’t contact him directly. The Tribunal suggested that his wife’s father must know where she was. The applicant said the father didn’t have his number. Why not contact his daughter to get to the applicant. He replied that his wife’s mother was protecting her from the father and wouldn’t let the father contact her. The father had many wives.
The Tribunal asked whether the uncle had been contacted or harmed since December 2014. He said the uncle had not been contacted and had not been harmed.
The applicant confirmed that he had heard nothing more about the threats since December 2014.
The Tribunal noted that it had now been three years since that one and only threat was made. Could that threat still be current? The applicant believed it was still current, based on his view of that family’s customs.
The Tribunal noted that it had asked the applicant three times whether his uncle had been harmed by the family, and each time the applicant had said no, that his uncle was only told of the threat to the applicant. However, the applicant had claimed in his application that the uncle was attacked. Furthermore, the uncle, in his alleged police report, alleged that he had been attacked. The Tribunal asked the applicant to explain this inconsistency. He said that he hadn’t understood the question.
The Tribunal asked the applicant about the statutory declaration, which was allegedly signed by his uncle [in] June 2016. However, the applicant had stated that he had not heard from his uncle since December 2014. How did he obtain the statutory declaration if he had not been in contact with his uncle since December 2014? The applicant stated that he had since rung his uncle and asked him for it.
The Tribunal asked the applicant about the complaint to the police – the police report. The Tribunal noted that the police report was not on the letterhead of the police station and that the signature of the police officer did not include his name or rank. The Tribunal stated that it had concerns about the authenticity of the document. The applicant stated that he would have had to bribe the police to get the report on letterhead.
The Tribunal noted that the Report also stated that the uncle told the police that his nephew was married. The report was dated [in] December 2014, but the applicant wasn’t married until September 2015. How could the applicant explain this? The applicant stated that people considered him to be married because he was living with his partner.
The Tribunal asked the applicant how his family found out that he and his partner were living together. The Tribunal noted that it appeared that the family found out almost immediately that they moved in together. The Tribunal noted that his wife was estranged from her father, and that her mother did not allow contact between her and her father. The applicant says they took a [social media] photo and one of his wife’s friends saw it and told the family. The Tribunal asked the applicant whether he had that photo and evidence of the [social media] entry. He said it was in his old [social media] account and he couldn’t access it.
The Tribunal discussed country information with the applicant about the prevalence of forged documents in PNG.
DFAT also reports that document fraud occurs frequently in PNG, particularly in relation to documents of identity. It is reportedly very easy to obtain birth certificates in any name. DFAT is aware of cases where grandparents’ names have been placed on birth certificates rather than parents’ names. Fraudulent supporting documents, including fake bank certificates and letters of invitation, can also be readily obtained. It is reportedly not uncommon in cases of visa non-compliance for people to reapply under a new identity. DFAT is aware of cases in which people have obtained multiple passports in different names at the same time.[1]
[1] DFAT Country Information Report PNG", Department of Foreign Affairs and Trade (DFAT), 10 February 2017, p.27
The applicant responded that he had just asked his uncle to get all the documents he needed. He said his uncle was afraid to move around so he got the documents when everything settled down. The Tribunal asked him to explain this, given that he had rung his uncle to obtain the documents. The applicant stated that he had asked his uncle for the documents in December 2014, but his uncle didn’t send them until June 2016.

The Tribunal clarified that he had not rung his uncle in 2016 as previously stated. He had been rung in December 2014, and because he was afraid and couldn’t move around, it was not until June 2016, as he was lodging his protection visa application, that the documents arrived. The applicant confirmed that he rang his uncle in December 2014 to request the documents he needed.
The Tribunal stated that it found this explanation somewhat implausible, given that he had earlier stated that he didn’t know about protection visas until he lodged it in June 2016 and at that time wouldn’t have known what documents were needed.
The Tribunal asked the applicant what the bride price was. He said it was [amount] PNG Kinas. He went on to explain that it could be [amount] to [amount] Kina, depending on the level of education of the bride.
The Tribunal asked him to clarify – was [amount] Kina demanded of him, or did he think he would have been asked to pay [amount] – [amount] kina, depending on his wife’s education. The applicant said he was told that he must return to PNG and pay [amount] Kina.
The Tribunal noted that this was strange, as he had said earlier that the threat was that he not return to PNG. The applicant said that was correct, he was to pay [amount] if he left his wife.
The Tribunal discussed with the applicant country information relating to the concept of the bride price.
A 2009 report by the UN Committee on the Elimination of Discrimination Against Women (CEDAW) provides the following description of bride price in PNG:
'Bride-price' which is an exchange of wealth between the groom's lineage and the bride's, continues to be practiced widely in PNG, particularly in the Highlands and Papuan Coastal societies. Over time, other groups have adopted the practice as well. The ideology of this practice is based on the desire to bring families together in cooperative alliances—for future marriage exchanges, trade, or other efforts. The valuables and the amount can vary from one society to the other, but the constant in this are pigs. Bride price is a traditional form of dowry given by the groom and his family and relatives, to his bride's family and relatives. The price is set by the family of the bride and this is met by the groom and his family and then distributed amongst the bride's family with the maternal uncles receiving benefits because they are consulted for the bride's marriage and are the most important uncles to the bride.
As the cash economy became more widespread, the cost of marriage rose in most groups, a social change that has had numerous negative consequences.[2]
[2] UN Committee on the Elimination of Discrimination Against Women (CEDAW) 2009, Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms ofDiscrimination against Women: combined initial, 2nd and 3rd periodic report of States parties: Papua New Guinea, 22 May, CEDAW/C/PNG/3, p. 49 <htto://>
The United States Department of State (USDOS) Country Report on Human Rights Practices - PNG noted in March 2017 that, 'Customary bride price payments continued to increase.'[3] A World Bank report stated that the payment of a bride price ‘acknowledges the marriage as legitimate in custom'.[4]
[3] "Country Report on Human Rights Practices 2016 - Papua New Guinea", US Department of State, 03 March 2017, 0GD95BE926861
[4] World Bank 2012, Papua New Guinea — Country Gender Assessment 2011-2012, 31 December, p.10<htto://documents.worldbank.orc/curated/en/491231468058779689/00755800REVISED0011020120Final0Reportpdf>
Australia's Department of Foreign Affairs and Trade (DFAT) reported in February 2017 that:
Both District Courts and Village Courts have the authority to make decisions in family law matters, including in cases of…. family disputes over bride price...[5]
[5] DFAT Country Information Report PNG", Department of Foreign Affairs and Trade (DFAT), 10 February 2017.
The Tribunal noted that the country information made it clear that it was a price to be paid for a bride, usually in the currency of pigs, that would be shared between the family and the uncles. His evidence in this hearing was inconsistent with this. The country information did not state that it was a penalty to be paid if one left his wife. The Tribunal also noted that his claims stated that he could not afford the bride price, which would suggest that it was a commitment to be paid for being married, not a reason to stay with his wife. He replied that the bride price must be paid for having lived with his wife.
The Tribunal commented again on the implausibility of this explanation – that he claimed he couldn’t afford the bride price and then it became a case of only having to pay it if he left his wife.
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. The numerous inconsistencies in his own evidence in this hearing, together with the inconsistencies as between the interview with the delegate, 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 his willingness to ignore Australia’s immigration laws by remaining unlawful for eighteen months; the Tribunal has formed the view that the applicant’s claims must be reviewed with the utmost scrutiny.
The Tribunal does not accept that the applicant was threatened by his wife’s family in December 2014. The Tribunal does not accept that any threat was made to his uncle in December 2014 or that his uncle was attacked by the applicant’s wife’s family in December 2014. The Tribunal does not accept that any bride price has been demanded of the applicant by his wife’s family and does not accept that her family has threatened to kill him if he does not pay the bride price or if he leaves her to return to PNG.
The Tribunal asked the applicant on more than one occasion whether his uncle was harmed in any way by his wife’s relatives when the alleged threat was made to the applicant through the uncle in December 2014. He said he was not. When an apparent inconsistency with his claims was discussed with him, the applicant then said his uncle was attacked.
The applicant stated in evidence that he has not heard from his uncle since December 2014. This was consistent with his evidence to the delegate. When asked how he came to have a statutory declaration from his uncle that had been sent to him in June 2016, he said that he had rung his uncle to “obtain documents that he needed”. When asked to reconcile the inconsistency in how he had asked for these documents but not had contact with his uncle since December 2014, he told the Tribunal that he had asked his uncle for the documents in 2014, and because his uncle was afraid, he had not moved around for a long time, and only managed to send the documents to him in June 2016. The Tribunal discussed the implausibility of this explanation. It highlighted the fact that at the time he claimed to have asked his uncle for the documents in 2014, he wasn’t at that time aware of protection visa applications and that when the documents appeared in June 2016, it was at the time he lodged his protection visa application. It was implausible that he would ask for those documents in December 2014 as documents he said he needed, when he was not at that time aware of the existence of protection visas.
Given that the applicant has not had contact with his uncle since December 2014, and his wife has not had contact with her father in that time, the Tribunal accepts that there has been no threat made to the applicant in that time. When asked why the threat would still be current, the applicant said he believed it was their custom. The Tribunal noted that it appeared implausible that the threat would be current or that if another threat had been made, that his uncle would not have contacted him.
The applicant referred to the statutory declaration of his uncle. The Tribunal has not given this document any weight. It had discussed with the applicant country information about the prevalence of fraudulent documents in PNG and it noted particularly that the letter was dated [in] December 2014, yet referenced the applicant’s marriage to his partner which did not take place until [September] 2015, some ten months after the date of the letter. When asked to explain that inconsistency, the applicant stated that people thought he was married because they lived together. The Tribunal noted that the applicant had just met his partner and that according to his evidence, had only just moved in with her, within a month of them meeting. The Tribunal noted the implausibility of people thinking they were married within a month of meeting.
The Tribunal referred to the complaint letter from his uncle that was signed by a policeman. The Tribunal noted that it contained many spelling and grammatical errors, that it did not appear on letterhead (as a record of a complaint), that the policeman’s name was not on the document, or his address or rank. When the Tribunal discussed this with the applicant, he said that he would have had to have paid a bribe to the police in order to get an official letter. The Tribunal gave this letter or report no weight either as it did not accept it as a genuine document.
The Tribunal does not accept that any “bride price” was demanded of the applicant. When asked what the bride price demand was, he said [amount] Kina. In his claims, he said that he could not afford to pay the demand. He said that the threat was that he had to return to pay the bride price. When the Tribunal noted that he had previously stated that he was threatened not to return to PNG and asked how that was consistent with his earlier evidence and claims, he said that the threat was that he had to pay the bride price if he left his wife and returned to PNG. However the Tribunal discussed country information with the applicant that stated that a bride price was a sum paid in the form of a dowry, and was shared between the bride’s family and uncles. This was not consistent with how the applicant described the bride price. To this, the applicant replied that he had to pay the bride price if he left his wife as payment for having lived with his wife. The Tribunal discussed the implausibility of this explanation given the description of the bride price and its ideology that it brought families together. It noted that the practice of paying a bride price was a custom in both the Highlands and Papuan Coastal societies. It also discussed the plausibility of the explanation of him only having to pay the bride price if he left his wife, against his claim that he could not afford the bride price. Did this mean that he had to stay with his wife as he could not afford the bride price? The applicant replied that he only had to pay it if he returned to PNG.
The Tribunal noted the process for the making of the application, and specifically noted that he arrived in Australia [in] September 2014. After the expiry of his [temporary] visa [in] December 2014, he was unlawful for eighteen months.
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 Tribunal finds that the applicant’s delay of eighteen months in making his application from arriving in Australia and forming a relationship with his partner, adds further weight to its findings that the applicant’s claims are not credible.
The Tribunal confirmed with the applicant that this was the only reason he could not return to PNG 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 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 being threatened by his wife’s family in December 2014, any threat being made to his uncle in December 2014, his uncle being attacked by the applicant’s wife’s family in December 2014, any bride price being demanded of the applicant by his wife’s family or any threat to kill him being made if he does not pay the bride price or if he leaves his wife to return to PNG, 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 was threatened by his wife’s family in December 2014, that any threat was made to his uncle in December 2014, that his uncle was attacked by the applicant’s wife’s family in December 2014, that any bride price has been demanded of the applicant by his wife’s family or that her family has threatened to kill him if he does not pay the bride price or if he leaves her to return to PNG.
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.
…

[2018] AATA 562

26 February 2018

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Immigration

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