1717656 (Refugee)

1717656 (Refugee) [2017] AATA 2000 (17 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717656
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Christine Cody
DATE:17 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 October 2017 at 11:16am
CATCHWORDS
Refugee – Protection Visa – Papua New Guinea – Intertribal Violence – Tribal land dispute – Domestic violence – Imprisonment – Previous offences – Fear of harm from magic – Fear of violence – History of alcohol and drugs – Mental health – Witness credibility
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 432A, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The relevant law is set out in Annexure A.
The applicant, who claims to be a citizen of Papua New Guinea, applied for the visa [in] January 2017. The delegate refused to grant the visa [in] August 2017.
The Department
The Tribunal had access to the Departmental file and the Tribunal file. The Departmental file contains documents including the applicant’s protection visa application forms, his Form 80 (Personal Particulars), documents confirming detention in Australia (including his Prisoner Account Statement for [dates in] 2016), a letter from the [State] Government confirming that the applicant was in a Correctional Centre, supporting documents, a copy of the recording of the interview with the delegate (to which the Tribunal has listened) and the delegate’s decision record.
There are no certificates restricting disclosure of any material on the Department’s file.
The applicant’s background and claims can be summarised from his application form as set out below.
The applicant comes from [Village 1], [district], [Town 1], Western Province, Papua New Guinea (hereafter referred to as “PNG”). He was born in [birth date]. He is from the [details of tribe] and his religion is United Christian. He attended school in his local area until Secondary High school, when he lived and attended school in [Town 1]. He finished high school in [date]. He then returned to [Village 1] and resided there continuously from January 2003 until [date] March 2016. He is a subsistence farmer.
His relationship with his wife started [in] December 2000, and they separated [in] March 2016 on [Location 1]. He has [composition of family] who continue to reside in the village.
[In] March 2016 he travelled with his wife to [Location 1] (Australian territory) to [undertake Occupation 1]. While in [Location 1], the applicant and his wife were involved in a dispute [in] March 2016, when he physically assaulted her. He was charged by Australian police for the matter. He travelled to [location] [later in] 2016 from [Location 1]. He remained imprisoned in Australia. He was on remand from [date] 2016 until [date] 2017, which his [lawyer] told him would be equivalent to his sentence. The Tribunal notes that no court/police evidence was provided as to his sentence; he told the Tribunal, however, that he was convicted of grievous bodily harm, he had been in prison on remand and he had received a suspended sentence. His current detention is because he is in immigration detention. Although the delegate’s decision record reports that he received a three year sentence, the applicant told the Tribunal that he only received a suspended sentence, and the Tribunal is prepared to accept the applicant’s assertion as to his sentence.
Concerning past harm, he stated that he experienced direct and indirect harm, including:
·     From the opponent tribes he has suffered [details of injuries]. They then handed him over to brutal police who [details of injuries]. He [details of subsequent illness]. He suspected this could be the result of [his injuries] or “black magic” (spiritual ritual of killing people).
·     Indirect harm includes his [property] being [damaged]. He does not know how his children are surviving without his presence. Racist opponents’ tribes have deprived him of all his properties.
·     There has been political harm because there is no government support or equal distribution in improving living standards, development, health and education.
·     The tribal groups and their connected networks including smugglers and murderers and brutal policemen caused harm to him.
·     “Further attacks and threats followed” his correspondence with authorities concerning issues of drugs or people smuggling into Australia who may be suspected terrorists passing through his village. He is therefore highly targeted and risks losing his life.
·     In the recent domestic violence offence, he surrendered to the Federal police and detectives in [Location 1] for safety [in] 2016. Otherwise, the opponent tribes were prepared to use torture as payback and revenge.
His concerns upon return include:
·     He fears harm through physical means and black magic because of the land dispute and the assault. If he returns, the tribes will track him down and kill him. They will use weapons or black magic against him. He is fearful to speak out against black magic. Alternatively he would be handed over to very hostile and brutal policemen (he refers to country information which he claimed shows inhuman treatment of victims by the police in PNG). He said that this had occurred to his [relative].
·     He has a well-founded fear of persecution due to continuous racial and social conflicts, nationality, political opinion or political ruining and degrading treatment or punishment and serious brutality against the people or citizens, by cruel police, and social racial groups who would work together to harm and punish him, including by force and by black magic. He fears political mistreatment. Further, he would suffer psychologically.
·     Additionally there are poor health facilities and poor medications which could not assist his illnesses. He continues to emit blood at certain times from his body which worries him. He “would” provide medical evidence. He would like to improve his health issues. He also has psychological effects which are getting worse and he is losing his senses.
·     He would like to improve his education.
·     He is engulfed by his problems and his only option is to be rescued by Australia and to be allowed to stay.
Interview[1]
[1] The source of this section is the delegate’s decision record provided to the Tribunal by the applicant.
The applicant attended the interview with the delegate [in] July 2017. He discussed his claims, including as follows:
·     He claimed to have arrived in [Location 1], without any ID documents. At interview, he stated that he is unable to provide any identity document such as a birth certificate because he could not afford to do so.
·     His family owns a significant portion of land in his home village. His family has been involved in land disputes with people over the years, including unknown people and his ex-wife’s family. [Number] members of the applicant’s family have been killed by black magic because of the land dispute. The applicant took them to court but the matter was dismissed because the court did not believe him.
·     The land disputes have been ongoing for years; even before he was married.
·     He travelled to [Location 1] to [undertake Occupation 1] (the delegate noted that he did not claim to have any intention to come to Australia to seek protection from tribal violence at the time he left PNG).
·     The applicant claims not to have spoken to his wife since the incident and that they are separated. Some of his children are with their mother in the village; another child resides with [a family member]. He speaks to his children by phone. His family assists in the logistics; if he speaks to his wife or her family by phone, his spirit can be taken and he can be harmed by black magic.
·     He claimed that his family told him that his wife’s family have threatened that, if the applicant returns to PNG, they will kill him or have the police arrest him again for his crime. The applicant said the last time that he was threatened by his ex-wife’s family was May 2016. When asked why his own family was not targeted in revenge attacks by his wife’s family, he said this was because his family told his wife’s family this was not their issue and the matter was between them and the applicant.
The Department wrote a letter to the applicant dated [in] July 2017 which invited him to comment on the relevant legal exceptions to being granted a protection visa (on the grounds of serious crime or danger to the community, noting his conviction). He was also requested to provide his education certificates (his claimed evidence of his identity).
Post interview submissions
He provided two post interview submissions, dated [in] July 2017 and [in] August 2017, which include:
·     He provided further detail of his criminal offence in Australia, and his rehabilitation and various support letters. [In] 2017 he was convicted of a serious offence, grievous bodily harm, which has a maximum sentence of up to 14 years. He has rehabilitated, completed courses and received certificates; he was under the influence of alcohol and drugs when he committed his offence. A list of the certificates was provided.
·     He feels guilty and considers that he has brought shame to the people of the village and in Australia he believes that he would be not wanted by the family and he would be hated and disrespected and deprived of his rights with his children if he returns.
·     At home he had suffered conflict with his partner’s clan and tribesmen; he had been imprisoned by these people and [number] of his tribespeople have been killed (they had no physical injuries or illnesses prior to their death). More attacks followed, serious threats to life, which began 10 years ago and continue due to land and other related matters. He experienced consecutive fights and conflicts with his partner’s tribe which led to his imprisonment.
·     If he returns he will be subjected to “my death penalty” though a “massive increase in violence that would lead me to complete degrading punishment, cruel mistreatments, torture, slaughtering and death penalty”. He cannot relocate because he will be tracked down by his partner’s [family], and he would be killed by the use of black magic and he would be handed over to cruel policemen. The people have strong networks and could bribe others to kill him.
·     He believes that his children are in danger.
·     He provided certificates of his education from Papua New Guinea, including a certificate indicating that he successfully completed his Higher School Certificate in [year].
·     Support emails from [Relative A], who claimed that the applicant had a voice and was active in the village community and that he made court cases about dangers against him and families, and he engaged the village authorities on safety and border issues. He is strong and healthy and hard-working and talented and gifted and is always peaceful and respectful. He does not have a criminal history other than towards his partner who becomes very jealous. He has suffered at the hands of his partner’s family including by being physically assaulted and through black magic; he is highly targeted and will lose his life if he returns.
The delegate’s decision record (provided to the Tribunal by the applicant)
The delegate was prepared to accept that the applicant could not obtain any primary identity documents, and noted that he has obtained education certificates from PNG (high school) and Australia (TAFE).
The delegate considered the country information indicating that tensions exist in PNG concerning land disputes, accusations of sorcery and witchcraft and inequality, which have led to outbreaks of fighting[2]. The delegate was prepared to accept that the applicant’s family had a significant portion of land in his home village which may have been disputed or wanted by people in the past. The delegate notes that his reason for leaving PNG (to [undertake Occupation 1]) suggested that there was no catalysing event or fear motivating his departure from PNG; the delegate found that there was no subjective genuine fear of harm regarding land disputes. The delegate accepted that the applicant has a subjective fear of black magic but considered that there was no objective evidence that his family members had been killed by black magic or because people wanted to take his land; the delegate considered this was speculative and that these relatives probably died of natural causes. He considered that, if the applicant had in the past engaged in physical conflict with his relatives, this could have led to his arrest, which itself would be lawful (and applicable to anyone in the circumstances). Further, the delegate considered that the land disputes have been ongoing for years, even before he was married, and it was not credible that the applicant will be targeted by his ex-wife’s family because of the land dispute as he claims.
[2] Source: DFAT Country report 10 March 2017
Further, the delegate noted that his post-interview submission contained a claim that his properties have been damaged by wife’s family and he has nothing left to survive with, but that this was at odds with his claim at interview (and the Tribunal notes, his claim at hearing) that his family still retained possession of the land[3].
[3] Delegate’s decision record, page 3.
Concerning the incident with his ex-wife, the delegate considered that, if the applicant was of significant interest to his wife’s family as claimed, it was unusual that his own family was not targeted in a potential attack of retribution and, at the date of the delegate’s decision, it had been over one year since the last alleged threat (May 2016 according to his evidence at interview), which led the delegate to conclude that the applicant is not of persistent or continuous interest to his former wife’s family as he claims.
Concerning the applicant’s health, the delegate considered that it sounded as if the applicant had [details of illness], that these would be currently managed by the detention facility and that health care standards in Australia would exceed those in PNG. The delegate considered, however, there was no evidence that the applicant would be denied access to medical treatment if he presented himself to a medical facility, nor was the delegate satisfied that the differences in medical treatment between Australia and PNG amount to significant harm.
The delegate referred to country information and noted that it was those persons who are accused of practicing black magic that may be at risk of harm (DFAT Report). It was noted that the applicant had not been accused of practicing black magic. Further, there is no objective evidence to support the existence of black magic; the delegate did not accept that the applicant was at risk of harm through black magic.
Concerning the claim that his ex-wife’s family could get him arrested if he returns home, and that he faces harm from the police because of the assault on Australian territory, the delegate referred to country information[4] indicating that levels of violent crime against women are very high, there is a lot of domestic violence and a November 2015 Human Rights Watch Report found that police and prosecutors rarely pursued criminal charges against perpetrators of domestic violence, even in serious cases. Thus the delegate found that the applicant was not at risk of harm by the police because of the assault on his wife, nor was it accepted that the wife’s tribe could have him arrested for this.
[4] Source: DFAT Country report 10 March 2017
The delegate considered that the possibility could not be discounted that the wife’s family may cause him harm if he returns to his village, but that the applicant could relocate. Country information from the DFAT report was referred to, noting that people can and regularly do migrate to big cities either in search of economic opportunities, or to escape tribal or other violence or natural disasters.
The delegate noted the applicant claimed in his post-interview submissions that his wife’s family would track him down if he relocated; the delegate considered that the applicant had embellished his profile with his wife’s family and he would not be at risk of harm if he relocated. While noting his claim not to have a family network in Port Moresby, and that there are high rates of unemployment in the formal sector in Port Moresby, the delegate considered that his ability to complete Year 12 and to obtain TAFE qualifications in Australia and his extensive command of English would improve his employment prospects.
The delegate noted that it was not necessary to make an assessment in relation to serious crime (s.36(1C)) as the delegate found that the applicant was not owed protection obligations.
The Tribunal
The applicant provided to the Tribunal his application for review form (in which he refers to his fear of the “death penalty” through black magic and tribal attack), a copy of the delegate’s decision record, country information, further submissions and supporting documents including numerous certificates of behaviour-changing courses he has undertaken in prison/detention. He claimed he is normally a good person but made a mistake while under the influence of alcohol and drugs. He goes to church and helps and respects others. He received lots of threats between March 2016 and January 2017 from his wife’s family, others will kill him, and they have claimed they will organise for immigration to deport him to PNG. The threats continue to date. He provided death certificates for the family members he claimed had been killed by black magic. He also claimed that he has been informed by village families that his ex-wife drinks and smokes around the children. They have lost most of their well-being and starve from hunger. His [children] are vulnerable to child molestation and he believes they would easily be mistreated if the enemy tribes could not get to the applicant. He believes his children are heading to sickness or mistreatment and death in poor health facilities and they would never come back. He cannot relocate to Port Moresby or elsewhere in PNG due to the danger of death, high population density, criminal activities, high crime rate, killing of people, tribal racism or discrimination, political corruption, hunger, homelessness, nutrition poverty, rascal activities, a lack of freedom of movement, police brutality and killing. He has lived a village lifestyle and he does not have city life experience so it is not safe for him and his children. His only option is for Australia to grant him protection. He provided country information noting that PNG has a complex distribution of wealth, noting that much has been concentrated in urban centres. Efforts have been made by the government to decentralise health and education services and provide equal access to them throughout the country. Although PNG has natural resources, it is still ranked as a lower-middle income country. Only about 50% of adults in Papua New Guinea are literate (while 25% of children are unable to attend school). Some health centres have closed, and difficulties in attending school and hospitals have to do with the infrastructure; in particular in rural areas there are a few roads or means of transportation. Violations of women’s rights are nearly systemic throughout the country. While there is poverty, progress has been made. Further, significant efforts have been made to address crime reduction and also providing funds to improve health, education, infrastructure, law and justice systems in the country). There is high unemployment and underemployment and a lack of economic opportunities for residents in the city (one factor being the high school dropout rate). Reference was made to the “wantok” system, which involves sociocultural responsibilities within the extended family/tribe, with every wantok having duties to their wantok-within the clan, village and city. Every person can expect to be housed, fed, protected, and to share in the assets of members of the extended family. The wantok system can protect individuals. Concerning sorcery, the persons accused are the most vulnerable, and can be subjected to payback.

The applicant appeared before the Tribunal on 3 October 2017 to give evidence and present arguments with the assistance of a Pidgin interpreter. He often gave his evidence in English, but used the services of the interpreter for clarification and at other times. The Tribunal is satisfied that the applicant was able to understand the proceedings, give evidence and present arguments. The Tribunal explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection, noting that it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision.
The applicant had requested that the Tribunal take evidence from three witnesses: [Relative A] who resides in [Australia], [Relative B] (the applicant referred to him as a [type of relative] but [Relative B] referred to the applicant as [the same type of relative]; the Tribunal has given the benefit of doubt in this regard and accepted that they are related) and [a third relative] [living] in Papua New Guinea. However at hearing he told the Tribunal after the evidence was taken from the first two witnesses, that he did not wish for the third witness to give evidence.
The applicant’s evidence about the injuries caused to his wife was vague and evasive. The Tribunal noted that he had been convicted of grievous bodily harm, and asked what her injuries were. He said he could not recall. The Tribunal made further attempts to ascertain; however, he continued to be vague. Finally, he said that she stayed in hospital for two months, he recalled that he had [details of assault], and she [details of injuries]. Given the applicant’s claim of the numerous courses he has competed because of his remorse for his assault on his wife, the Tribunal considered his evasive evidence to be difficult to understand.
He told the Tribunal that he had finished schooling in [year] when he (successfully) completed his Grade 12. When asked whether he worked, he then said that he did not pass the government percentage mark; and he is from the rural area and far away from town so all applications he completed were not really considered: and he had no finances. The Tribunal suggested that he would not need money to get a job and he then changed his evidence and said that he needed to get experience to get a job.
He then claimed that he was a subsistence farmer, and that his father owns their land. He said that, within his village, his clan (his relatives) all own their own pieces of land. His clan owns the whole of the land in the village.
When asked what he feared upon return, he said that he fears cruel mistreatment from his ex-wife and tribe. They will beat him up and he will be killed (physical harm and black magic). He also discussed concerns relating to health and education. The applicant said that his children are his future, they are with their mother and he sends books and pens from here; he is not sure if they go to school. The Tribunal put to him that it is difficult to see how he faces a real chance of serious harm or a real risk of significant harm in relation to education. In response, the applicant said that, if his wife’s family do harm to him, then his children will be affected. The Tribunal put to the applicant that it is interested in him, and what affects him, and that, although an effect on his children could have an effect on him, it was difficult to see how they face harm; it did not understand why the wife’s family would harm her children. He did not provide an answer to this; he just repeated his claim that if he goes back it will result in his death and they will chase him down and his family has conveyed to him that he is under threat from the wife’s family.
He also mentioned relocation. He said he had read the delegate’s decision record which indicated that he could relocate to Port Moresby; he said that he is scared to do so and does not want to relocate. He does not want to return and relocate to Port Moresby; he does not see that it would be suitable. When asked if he had any other concerns or fears, he said no.
He would often repeat himself when the Tribunal would ask if there was anything more; this lengthened the hearing time, even though the Tribunal said on a number of occasions that he did not need to repeat himself and that the Tribunal was recording his evidence.
The Tribunal was concerned that the applicant had raised new claims and provided new evidence after the delegate’s decision that could have been provided before that time. However, the applicant’s claims before the delegate are couched in broad language, and the Tribunal has decided to give the applicant the benefit of the doubt and not find that he made new claims after his claims were refused by the delegate, but that he had made suggestions of his claims before the delegate. Thus, although s.423A of the Act was discussed with the applicant at hearing, the Tribunal has decided it is not appropriate to invoke or rely upon this section.
The Tribunal put its concerns with his credibility and the credibility of his claims to the applicant, noting that it had not made up its mind, as well as information pursuant to s.424AA of the Act.
Further relevant evidence and information is referred to below.
FINDINGS AND REASONS
Credibility
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 the 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.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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 & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
Having considered the relevant evidence, the Tribunal has serious concerns about the applicant’s credibility and the veracity of his claims. The Tribunal has significant concerns with his inconsistent, changing and not plausible evidence. The Tribunal sets out its reasons below.
Firstly, the Tribunal was concerned that the applicant was not truthful about his past and matters related to his background. For example, the Tribunal was concerned that the applicant claimed that one of the reasons he cannot relocate to Port Moresby is that he does not know anyone up there. The Tribunal, being aware that he had claimed that [Relative B] was residing in Port Moresby (when he listed him as a witness and gave his address as Port Moresby), asked the applicant to think carefully before he confirmed this was true. In response, the applicant confirmed that he knows no one in Port Moresby. The Tribunal then asked the applicant where [Relative B] lives, and the applicant said that he resides with a [public official], who is their [relative], but the applicant cannot live there too. The Tribunal noted the applicant had not responded to its question, and again asked the applicant where [Relative B] lives. He finally said Port Moresby. The Tribunal put to the applicant that this indicates that when he said he knows no one who lives in Port Moresby, this was not true. In response he said that he has family members like this [public official] who have been in Port Moresby for many years but he has never been there and he does not know him and so he would not stay with him because he does not know him well enough. The Tribunal notes that the applicant was prepared to insist, until the Tribunal put to him his own evidence, that he knows no one in Port Moresby, when it transpires that he does have two (or more) relatives who reside there, including one who is a [public official]. The Tribunal considers that this undermines his credibility and his claims. The Tribunal’s concerns in this regard are heightened because, as noted at paragraph 22 above, the applicant also told the delegate that he did not have a family network in Port Moresby, which is inconsistent with his final concession at hearing that he does have family in Port Moresby.
Further, the applicant claimed to have been a farmer, and, when asked, he said that he always passed agriculture at school. He said he was always a good student, and he used to look after chickens and the farm and cabbages; he was active. The Tribunal noted, however, that, in claiming that he did not have actual identity documents, he had provided education documents to the delegate instead (as set out in the delegate’s decision record), and the [School] in [year] that he provided records that he failed agriculture (the only subject failed). In response, he asked if this was from grade 10 (which he had told the Tribunal he had done in [year]). The Tribunal put to him that it was from [year] (thus not Year 10). In response he said that this was because he was competing against 500 students. The Tribunal put to him that it did not understand why he had initially said he passed, whilst the document recorded that he had failed[5]. He did not otherwise provide a satisfactory explanation. The Tribunal considered that the applicant’s changing evidence, when the Tribunal put his inconsistent document to him, undermines his credibility and the genuine nature of the document.
[5] (DF 53 reverse)
Secondly, the Tribunal was concerned that aspects of the applicant’s claims were changing, inconsistent and not plausible.
When the Tribunal asked how often the applicant was beaten up by his wife’s family, he said it was initially about three times per year (in 2006), increasing to about 10-11 times by 2015. He said he was in real fear ever since 2006 because they would come with weapons and knives. During this period he suffered significant injuries. The Tribunal put to the applicant that it was difficult to understand why he would stay and get beaten up and attacked, for years, by these people. It also put to him that, despite him expressing that since 2006 he feared he would be killed, there was plenty of opportunity for these people to do so, but this did not occur. He said that this is because he runs away and then he comes back again. The Tribunal put to him that it did not understand why he did not leave country earlier, and why he stayed for 10 years in a situation like that. The applicant’s response, however, was evasive; he said this has continued because it is a continuous situation and it will never stop and he began to know when he came here that people can be rescued and that he could apply for protection. The Tribunal responded that he is an articulate and intelligent young man, and it would think that he would have realised that he could have left his home area earlier (especially noting that he has relatives in Port Moresby, and he had also left his area to [undertake Occupation 1]). In response he said that he ran away to other villages. The Tribunal put to him that this is not what was declared in his protection visa forms. It noted that he claimed to reside in the same village all of his life until he went to [Location 1]. In response, the applicant said that he did not include the times that he sought refuge in other villages, but the majority of the time he would stay in his village. The Tribunal has considered this response but does not find it persuasive. The Tribunal considers that it is difficult to accept that, if he was in such danger that he needed to run away, he would then return to the village, the place of danger, especially given his claim that he was in real fear ever since 2006. Further, the Tribunal notes that in his application forms, it states that he should list all temporary accommodation where he has resided (and although he provided a lot of different detail for other periods, he only specified staying in [Village 1] from January 2003 until February 2016). The Tribunal considers that his changing evidence about where he lived, and his claim to continuously return to his village despite the claimed dangers, undermines his credibility and his claims.
Further, the Tribunal was also concerned with the applicant’s claim that his wife’s clan had started to learn black magic 20-25 years ago and were using it to threaten the applicant’s clan so that the wife’s clan could take the land. The Tribunal notes that this did not appear to fit with the applicant’s claim that he had started off the conflict between the tribes in 2006, because he told the wife’s clan that his clan owned the land. The Tribunal noted that, if they have learned black magic, effectively 20-25 years ago, and were using it to kill people and to battle against his clan in the land dispute, this was inconsistent with his claim that the conflict had started (because of him) in 2006. Further, the Tribunal noted that he had claimed to have brought numerous court cases against them from 2009, which they did not like, and they wanted him dead since 2006; they could have used black magic or other means to kill him since then. The Tribunal put to the applicant that, if he was the person who was angering them, it did not understand why they did not use black magic to kill him, because, if they did that, it would show everyone else in his clan that they should not continue this land dispute against his wife’s family.
He suggested in response that because he took them to court and brought it out in public they were using black magic; they did not want to use black magic against him. The Tribunal put to the applicant that, if this was the case, he should not have had a fear that they would use black magic against him in the future. Later he claimed that taking a court case against them would stop them “for a while” and then they would start using black magic again. The Tribunal is not prepared to accept the applicant’s explanations. The Tribunal notes that these people were prepared to continuously attack him physically in public (and that, as he claims, it was common knowledge that they were regularly using black magic to harm and kill); it considers that, if they really wanted to get rid of him and stop him doing what he was doing, against their interests, then they could have killed him (or, when they started using black magic again after stopping “for a while”, they could have effectively used their black magic (which, by (his) definition, is used to harm people without making it obvious who has done this and how they have been harmed) to remove him as an opponent. The Tribunal considers that his changing, inconsistent, and difficult to accept evidence undermines his credibility and his claims.
Thirdly, the Tribunal was concerned that the applicant gave inconsistent and vague and evasive evidence about his involvement with the court. As set out in the delegate’s Decision Record provided to the Tribunal by the applicant, he told the delegate at interview that he had taken the perpetrators of the black magic to court; however, the matter was dismissed, and the court did not believe him. This, however, was inconsistent with his evidence to the Tribunal: when the Tribunal put to him that there needs to be a system in place to sort out competing claims, he said there is a court and they have gone through the courts on many times. When the Tribunal asked who had lodged the court case, he said his [relative] and himself; they lodged [a number of] court cases, which were ongoing. When the Tribunal put this inconsistency to the applicant, he said they denied the black magic and the court was unable to prove the case. The Tribunal notes that this is inconsistent with his evidence to the Tribunal that the cases have not yet been decided, and his claim to the Tribunal that [details of court cases]. The Tribunal considers that his changing evidence about the number of court cases ([number]) and the status of those cases (dismissed or ongoing) undermines his claims.
Further, the Tribunal was concerned with his evidence about the court cases in other respects:
· He was vague about the dates, when asked he could not recall. When the Tribunal asked for approximate dates, he then said 2009, 2010, 2011, and 2013. The Tribunal was concerned about his inability to recall the dates, as well as his response to a concern raised by the Tribunal, having regard to his claim that the first court case was taken in 2009. Further, after he had recalled the dates of the court cases, he then gave inconsistent evidence about the date of the first court case: The Tribunal asked the applicant questions about his wife and her clan. The Tribunal put to the applicant that it did not seem to make sense that the marriage, between two rivalling clans, where there have been deaths and conflict as he claimed, would be permitted. The applicant said that it was not a good marriage and the wife’s clan began to fight him and hit him and try to kill him because of the background land issue. The Tribunal asked when they first started targeting/ attacking him and he said in 2006, after they had been married in 2004, no, in 2005. He said that in 2006 they began to take them to court to tell them they are not the owners of the land. The Tribunal put to the applicant that he had earlier told the Tribunal that the first court case started in 2009. He did not explain this inconsistency; he just said that he is describing the first time they had a conflict, a fight. The Tribunal considers that this undermines his credibility and his claim that his wife’s family attacked him, and that he was involved in court cases in relation to a land dispute.
· The Tribunal was concerned that he avoided the question posed by the Tribunal as to why he and his [relative] had the right to lodge the court case if it was his father, who is still alive, who owns the land, and other family members from the clan own the other land in the village. His first response was that there were many conflicts between the clans about debts. The Tribunal put to him that he was not explaining why he had the right to lodge the claim for the land given that he was not the owner of the land. He did not respond and then he said “we want to lodge the claim and the other clans lodge it and they pause a bit and we see also people dying in between and we have the fear”. The Tribunal again noted this was not a response to the question, and said that, if he did not answer the Tribunal’s questions, it may find that he is not telling the truth. He then claimed that he did not understand the question. The Tribunal again repeated the question. The applicant then said they are the next of kin of their father. The Tribunal put to him that his father is still alive. He still did not explain why, if his father was still alive, he had the right to lodge the case to seek a resolution on the ownership of the land, which the Tribunal considered undermined his claim to have been involved in a land dispute and to have commenced legal proceedings, and his credibility.

Fourthly, the Tribunal had further concerns about the evidence that the wife’s family had been harming the applicant and their motivation, in addition to the concern above about the changing date of when he first took a court case against them and this is why they wanted to hurt and kill him.
·     The Tribunal asked the applicant why the wife’s family were beating him up, as opposed to targeting other members of his clan, and he said it is because he told them the truth, that they are not the owners of the land, they are not from the village, so they want to hurt him; this started in 2006. The Tribunal put to the applicant that, if it was the case that they started beating him up in 2006 because they disagreed that his clan was the owner of the land, it did not understand why it took him until 2009 to lodge the first court case (and in the meantime he continued to be beaten up). In response he said that when they bring cases they go step by step. This, however, is inconsistent with his earlier evidence, which was that he could not tell the Tribunal the name of the law which was relied upon in the court case he had commenced, because it was a basic system in the community law and they just put in their application with basic information; there is no law book and they just lodge it. The Tribunal considers that the applicant’s evidence in this regard undermines his credibility and his claim to have lodged a court case. The Tribunal’s concerns were heightened because the applicant had produced to the Tribunal, two weeks prior to the hearing, country information stating that the resolution of disputes about the use, ownership and boundaries of customary land is generally governed by the Land Dispute Settlement Act 1975 (hereafter LDS Act) which establishes a system of land mediation that is intended to be “close to the people” and to provide an “avenue for traditional dispute settlement processes to be utilised”.[6] The Tribunal considers that, if, as claimed, the applicant has taken 4-5 court cases, he would have been aware of the name of the Act, especially as it is referred to in the country information he has provided to the Tribunal. The Tribunal considers that this undermines his claim, and indicates that the legal situation relating to land dispute is not relevant to him, contrary to his claims.
· As put to the applicant pursuant to s.424AA of the Act, [Relative B] gave evidence to the Tribunal that there was conflict between the wife’s family and the applicant, but the main reason he gave was that this was because of domestic issues between the wife’s family and the applicant, because the applicant was not treating the wife and children well. This was in contrast with the applicant’s own evidence that the reason why the wife’s family was beating up the applicant was because of the land dispute. In response, the applicant said that his wife is jealous and instigates things with the family and normally runs away and he does not beat her all the time, only now and then. The Tribunal considers that the inconsistent evidence undermines the applicant’s claims and credibility, as well as the reliability of the witness.
· As also put to the applicant pursuant to s.424AA of the Act, it was [Relative B]’s evidence that the land dispute problem only started in 2014 as a result of what the applicant had said to the other clan. This was in contrast with the applicant’s evidence that it had started in 2006 because of what the applicant said. The Tribunal was concerned that there was such a significant difference and, in response, the applicant said that [Relative B] goes in and out of the village and Port Moresby, so he missed the court cases in the village, and it was while he was away that things happen in the village. The Tribunal has considered this response but does not find it persuasive. The Tribunal notes that, when the applicant requested the Tribunal in writing to take evidence from [Relative B], it was because he was a “primary witness to my dangers and give proof”. The Tribunal considers that, if the applicant did have problems ever since 2006, there would not have been a difference of eight years between the evidence of the witness and the applicant as to when the problems started, especially noting the applicant’s evidence that his wife’s family had wanted to kill him ever since 2006. The Tribunal considers that this undermines the applicant’s claims and credibility, as well as the reliability of the witness.
· As also put to the applicant pursuant to s.424AA of the Act, it was [Relative A’s] evidence that the applicant had been beaten up badly in Papua New Guinea by his wife’s family ever since the year 2000. This, however, was inconsistent with the applicant’s evidence that he had only started to be beaten up by his wife’s family in 2006, after they were married in 2005. In response, the applicant said that [Relative A] must have been a little bit confused when she talked, but she knows; she could have just forgotten the date of the evidence he provided. Similar to the above concern, the Tribunal does not find this persuasive. The Tribunal notes that, when the applicant requested the Tribunal in writing to take evidence from [Relative A], it was because she was a “primary witness to my dangers and give proof”. The Tribunal considers that, if the applicant was being beaten up by his wife’s family and his life was in danger, there would not have been a difference of six years between the evidence of the witness and the applicant as to when he started being beaten up, especially noting the applicant’s evidence that his wife’s family had wanted to kill him when they started beating him up in 2006, and that they only started beating him up after his marriage (but [Relative A’s] evidence meant that his wife’s family were continuously beating him up for five years even before he married his wife). The Tribunal considers that this undermines the applicant’s claims and credibility, as well as the reliability of the witness.
·     The Tribunal noted that the applicant had produced a medical certificate dated [in] September 2013 which did not indicate that he was suffering any physical problems, contrary to his claims of [details of illness]. The applicant did not offer a reasonable explanation about this.
[6] TF52
Finally, the Tribunal had concerns when it discussed the deaths of his relatives with the applicant. The Tribunal noted that the death certificates do not give the cause of death. In response, the applicant said that he has produced a statutory declaration which says that they are all caused by black magic. The Tribunal expressed doubts about this method of death and the applicant responded that it is common knowledge in the village that they were killed by black magic. The Tribunal put to the applicant that if this was the case, that the black magic was so strong that it was killing such a significant number of his relatives, it did not understand why his family would remain in the village. In response he said that the people who practice black magic make it look not like black magic. The Tribunal considers that this does not answer its concerns, and that, if the wife’s family were so successful at killing people with black magic that they had killed [a number of] people from the applicant’s family, he has not offered a reasonable explanation as to why his family have remained in the face of such danger, which undermines his claims that his family members have been so killed.
For the reasons set out above, the Tribunal does not consider the applicant to be a credible witness.
Other matters
Mental health: The Tribunal notes that the applicant has, throughout these proceedings, been on remand or in immigration detention. It accepts that this is a difficult situation, and has considered whether this could have affected his evidence or giving of claims. It has also considered that there was a letter from a “counsellor/ psycho educator/ trainer” dated [in] July 2017 saying that the applicant had attended and completed 8 programs relating to self-improvement and assistance for substance abuse, addiction, stress and cognitive behaviour therapy. It was stated that he was suffering from depression and anxiety and he had been having regular counselling. However, when the Tribunal asked the applicant if he had been seeing any other specialist (apart from for physical matters), he said no.
The Tribunal raised with the applicant that it understood that, in the past, he had seen a counsellor, and he said yes, this was related to the courses they had done for staying away from drugs and alcohol. The letter from the counsellor does not indicate that there has been a professional diagnosis of anxiety and depression. The applicant is no longer seeing a counsellor.
The Tribunal put to the applicant that he appeared to be intelligent and very articulate. The Tribunal notes that while he has been in prison he has completed a number of vocational certificates at TAFE ([details of courses]), in English.
In his letter to the Tribunal one week prior to the hearing, he stated that he has been, while in detention/prison, engaged in attending activities such as touch football, arts, printing, mathematics problem-solving, puzzles, music, putting effort into solving problems for non-English speaking groups and teaching them English and being mostly friendly with the detainees. Although the Tribunal accepts that the applicant may have been anxious and upset at being detained and at his behaviour, the Tribunal is not satisfied that there is a medical diagnosis of any condition, nor that he is suffering from any particular condition, which can explain the difficulties with the applicant’s evidence. It also does not accept his written assertion that he is “losing his senses”.
Corroborative evidence
Claims of physical symptoms: The Tribunal put to the applicant that it was concerned that he had made serious claims of [description of illnesses], all occurring while he was in Australia, which appeared to indicate serious medical issues, yet he did not provide any medical reports in support. In response he said that he still experiences this and sometimes it stops and he went to medical. When the Tribunal attempted to ask questions about this, his evidence was vague and evasive. The Tribunal asked what the doctors have said and he said they said they cannot provide a medical report. The Tribunal put to him it was difficult to accept that the doctor would say that he cannot have a report; he claimed the doctor said a “medical name” but he could not recall this. He then changed his evidence and said that the doctor said that what he was experiencing was “normal”; the Tribunal put to him that this was difficult to accept (given the severity of his claimed symptoms). He then said he told the doctor it was not normal but the doctor told him it was normal; he is ok, it happens sometimes. The Tribunal does not find his evidence to be satisfactory in this regard; it also notes that the applicant has provided numerous documents to the Tribunal, but none raising serious medical issues experienced currently or while he was in prison or detention in Australia.
The applicant also claimed to the Tribunal that he had [an injury], which he said was a result of his wife’s family [attacking] him. The Tribunal did not have any evidence of the [injury] other than the applicant’s assertion. As it was a video hearing it was not possible to see [the injury]. However, even accepting that the applicant may have [the injury], this could have been caused by anything, and at any time. The Tribunal is not prepared to accept the applicant’s assertion that he has [the injury] which was caused because of the claimed harm experienced in PNG.
The Tribunal is not prepared to accept the applicant’s claims that he has experienced his claimed physical symptoms either in PNG or in Australia, as a result of black magic or being physically assaulted, or at all. The Tribunal finds the applicant’s evidence about his medical situation, and the results of having seen a doctor/ whether or not a medical report exists, to be vague and evasive.
Letters/ documents in support
The Tribunal discussed with the applicant that it would consider the support documents provided, but it would have to consider how much weight was to be applied to them, noting that persons could write letters to support someone, with the contents not necessarily being true. It also noted that country information indicates the availability of false documents from PNG; the DFAT Report states (paragraph 5.36):
PREVALENCE OF FRAUD
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.
The letters/documents included:
·     A letter from a fellow prison inmate, an ex-[public official] who says he knows about and has witnessed black magic, the applicant is remorseful about his actions towards his former partner, and he wants to bring his children to Australia to save them from a life of violence and child molestation. He is attending church regularly and is hanging around with a good crowd of friends.
·     The death certificates (which did not state the cause of death) and a statutory declaration stating that all of the deaths were caused by black magic. The Tribunal discussed the death certificates with the applicant as set out above. It is not prepared to place weight on either the death certificates or the statutory declaration stating that the deaths were caused by black magic.
·     The emails from [Relative A], described above, which provide some corroborating evidence about his claims and request that the applicant be allowed to remain in Australia and bring his children across. The Tribunal is not however satisfied that these emails (nor the letter from his friend) are independent supportive evidence which should be given any weight.
The Tribunal is not satisfied that any of the matters claimed can overcome the Tribunal’s concerns with the difficulties in his evidence set out above.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has exaggerated and fabricated accounts of background, events, as well as claimed fears, upon which he has based his protection claims.
Findings on the applicant’s claims
The applicant’s identity, place of origin, country of reference, and home area
As set out above, the Tribunal was concerned that the applicant was not truthful about his past and background. He had produced a school report which was inconsistent with his own evidence about his agriculture result at school in his claimed home area, and it found his denials about Port Moresby to undermine his credibility about his association with the capital. The Department noted that he arrived in Australia without identity documents. It was, however, prepared to accept his identity. The Tribunal notes that the applicant provided to it a birth certificate[7] which indicated that he was born in [Town 1]. It also notes that the applicant has provided evidence of [Relative A’s] passport, which shows that [he/she] was born in [Village 1]. Although [he/she] has a different surname, the Tribunal is prepared to accept their relationship as [details of relation] and thus to accept that the applicant was also born in [Village 1]. This does not mean that he did not move and live in a more urban location than [Village 1], such as Port Moresby. The Tribunal considers that the applicant’s preparedness to lie about his connections to Port Moresby, and his articulate nature and ability to obtain [certificates] from TAFE, suggests that he has had work in PNG other than as a subsistence farmer all of his life. The Tribunal is not prepared to accept that his home area was the village, or that he was a subsistence farmer as claimed. The Tribunal finds instead that the applicant’s home area was Port Moresby. In this regard, the Tribunal has considered the delegate’s opinion, set out in the decision record, that the applicant gave details about his place of origin; while the Tribunal accepts he gave evidence as to distances and modes of travel from [Village 1] to [Town 1] and [Location 1], this does not mean he had not moved to Port Moresby at a young age.
[7] The Tribunal had discussed with the applicant at hearing that he had not provided his birth certificate; he did not indicate to the Tribunal that he had done so. However, upon a review of the file the Tribunal notes that he had provided a birth certificate to the Tribunal (which had not been placed on the Tribunal file); the Tribunal does not draw any adverse inference from the discussions about the birth certificate at hearing.
The Tribunal is prepared to accept that the applicant is a national of PNG, that he was born in [Village 1] but then moved to Port Moresby, which is his home area, and that the appropriate country of reference for the assessment of his refugee claims and complementary protection claims is Papua New Guinea.
Findings on claims of past harm and future fears
The Tribunal is prepared to accept that the applicant has separated from his wife as a consequence of his assault on her and her returning to Papua New Guinea while he remained imprisoned in Australia. It also accepts that he remains in contact with his children and that this is facilitated by family members from both sides. The Tribunal considers that his contact with his children will continue upon return.
On the basis of the adverse credibility finding, it does not accept that the applicant had been living in the village (except when he was a young child), nor that he had any leadership or political or advocacy role for the village or his clan, nor does it accept that he has been targeted, harmed physically or psychologically as claimed, subjected to threats or fear of being harmed or killed or imprisoned/detained/kidnapped, nor that he has lost properties, had [property] destroyed, nor that he was ever subject to the adverse attention of the police or authorities previously in Papua New Guinea for any reason at all (including politically). It does not place any weight upon the death certificates and does not accept that any members of his family who may have died have been killed through black magic or targeted or harmed by the wife’s family, other clans, or any authorities. It does not accept that the applicant has suffered while growing up or living in Papua New Guinea, whether as a child or as an adult, through politics, government policies, health or education system or for any reason. It does not accept that he corresponded with authorities about drugs, people smuggling or terrorists or that he faced attacks or threats or being targeted for such reasons or that he was involved in or took any court cases. The Tribunal does not accept that the applicant faced any harm or feared harm prior to coming to Australia nor that he considered that he was and will only be safe in Australia. It also does not accept that his family members have suffered any harm. The Tribunal does not accept any of the claims that flow from these claims. The Tribunal does not accept that since he has been in Australia he has been informed that he should not return, nor that any threats have been made about him, nor that he faces harm from anyone upon return.

The Tribunal considers that there is no credible evidence before it to suggest neither that the applicant faces harm for imputed political involvement or opinion in relation to land disputes or for any other reason, nor does it accept that he has any political opinion that he would seek to impart, nor that there is any reason for the applicant to face a real chance or a real risk of being so imputed.
Land acquisition: The Tribunal noted that he had provided country information which referred to the government acquiring land in some cases. The Tribunal noted that he did not make a specific claim in this regard, and asked him about this. He said he just provided the country information to make it clear that the government can just come on the land and so can companies. The Tribunal noted that he himself did not claim to own the land, instead it was his father who owned the land; the Tribunal asked, however, whether he had concerns about this affecting him, and he said no, it is not a claim, it is not relevant to his situation. The Tribunal so finds, and it is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in the form of the government or companies taking land owned by his family.
Financial issues: The Tribunal has found that the applicant has been residing in Port Moresby. The Tribunal found that the applicant was attempting to hide from the Tribunal that he had any relatives Port Moresby. The Tribunal found (as finally admitted by the applicant), that he has relatives in Port Moresby; the Tribunal notes the reference to “wantok” in the applicant’s country information, but, even if he received no support from these relatives, the Tribunal considers the applicant to be a resourceful person who has been able to previously support himself in Papua New Guinea, and would again be able to support himself upon return. The Tribunal does not accept that he faces a real chance or a real risk of requiring government support, nor that he faces a real chance of serious harm, or a real risk of significant harm (including arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment) for financial/economic/survival reasons, including in the continued support to his family members.
Education: When the Tribunal asked the applicant his fears, he also said that his concerns are about the education system and that it is of a low standard. The Tribunal noted, however, that he was [age] years old, and that he appeared to be an educated person, who had obtained his education in PNG. The applicant portrayed himself as a person who did not succeed in his education, he was unable to get jobs, and his only choice had been to be a subsistence farmer. In these circumstances, he claims to have arrived in Australia, been imprisoned, completed numerous certificates at TAFE, completed a detailed protection visa application form, and provided evidence and arguments articulately before the Tribunal. While the Tribunal accepts this is possible, it is not persuaded that he has received a “low level education”, nor that he was unsuccessful in his education. Although he has done some certificates in Australia while in prison, the Tribunal does not accept that this particular resourceful, intelligent, educated applicant would be unable to obtain further education in PNG if he chose to do so[8]. In any event, he did not suggest that there was any particular education in PNG that he wanted to undertake that he would somehow be prevented from doing. Further, the Tribunal notes that, when it put to him that it did not appear that he faced a real chance of serious harm or a real risk of significant harm because of education, he only said that, if his wife’s family hurt him, then his children will have difficulties. The Tribunal has not accepted that he faces harm from his wife’s family; it is also not prepared to accept that he or his children face a real chance or a real risk of a lack of education amounting to serious harm or significant harm.
[8] DFAT paragraph 2.22: Education
UNESCO estimated in 2014 that PNG had a literacy rate of 62.9 per cent for the adult population over the age of 15. Men (68.9 per cent) had a markedly higher rate than women (57.3 per cent). There was also a huge disparity between urban (86 per cent) and rural (52 per cent) literacy rates.
Health: When asked at hearing whether there were any other fears he had not discussed with the Tribunal he said his health. However, when the Tribunal asked him what was wrong with his health he said it is ok but their hospitals are not good. The Tribunal asked whether he had been seeing any professionals or doctors in Australia and he said that when he was doing [physical activity] in [city] he injured himself [details of injury]. He was told that they cannot do it while he is in prison; it will wait until he is released out into the community. The Tribunal put to him that it does not appear that there is any real urgency otherwise they would be treating it now. He said he was told it will just wait until he is out of prison/ detention. The Tribunal is prepared to accept that the applicant will undergo a non-urgent [medical procedure] at some stage in the future; although the Tribunal accepts that the health care in Papua New Guinea is not ideal (DFAT states that it faces a number of major challenges, paragraph 2.21), it does not consider that the applicant faces a well-founded fear of persecution, nor the death penalty, arbitrary deprivation of life, or intentional torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as a result of a future, non-urgent operation.
Mental health issues: After discussing his [injury], the Tribunal asked whether he was seeing any other specialist and he said no. The Tribunal noted that, in the past, he had seen a counsellor, and he said yes, this was related to the courses they had done for staying away from drugs and alcohol. The Tribunal is not satisfied on the evidence before it that the applicant has any current conditions which would lead to him suffering a real chance of serious harm or a real risk of significant harm for reasons of mental health, or that he faces a real chance or real risk of suffering psychological harm in the future.
The children: The Tribunal explained to the applicant that it was considering whether he faces a real chance of serious harm or a real risk of significant harm, not the children. It did acknowledge, however, that suffering of the children could adversely affect the applicant. The Tribunal notes that, in his written materials, he had suggested that the children may be at risk of molestation, and it asked what this meant. In response he said because of the ways of the wife’s clan; the wife’s family marry too close together and his [relative’s] children have been subjected to this. The Tribunal put to the applicant that, if this was the case, it did not understand why he and his wife did not move away, for example to Port Moresby, so that the children would not be at risk. In response he said that moving away depends on if he is a business person or he can work; he cannot just go somewhere else. The Tribunal notes that the applicant claimed to have travelled to [Location 1] for [Occupation 1]; further, as noted above, it is not prepared to accept the applicant’s evidence about his past work and home area. The Tribunal is not prepared to accept the applicant’s assertion that his children are at risk of inter-marriage, nor does it accept any of his assertions as to the children facing harm.
His wife’s family: While the Tribunal accepts, as discussed with the applicant at hearing, that he was convicted of grievous bodily harm against his wife, for assaulting her, it does not accept that his wife’s family seek to cause him physical (or psychological) harm for this. It was his evidence to the Tribunal that this was not the first time he had assaulted his wife; he did not, however, claim that, in the past, his wife’s family had ever sought retribution against him for this. The Tribunal notes that [a relative] made this claim; however, as the Tribunal does not place weight on his evidence, and the applicant himself did not make this claim, and having regard to the adverse credibility finding, the Tribunal does not accept that his wife’s family, in a culture where there is significant entrenched domestic violence, have ever harmed him or sought to harm him for this reason. Similarly, the Tribunal is not prepared to accept the applicant’s assertion that he faces a real chance of serious harm or a real risk of significant harm from his wife’s family (or his family, or anyone), because of his past assault(s) on her, in the form of physical harm, ostracism, being hated, disrespected, deprived of his rights or black magic. Further, the Tribunal does not accept his claim that if he contacts his wife’s family his spirit can be taken, nor that his wife’s family have an interest in harming him (or tracking him down).
Death penalty/ double jeopardy/adverse attention of police/ authorities/ general violence and crime/ stigma: In the protection visa application form, the applicant referred to facing “the death penalty” but from his evidence to the Tribunal it appeared clear that he was not referring to a court-ordered death penalty (nor was he suggesting that the authorities would retry him for an offence for which he has already been convicted), but instead he was claiming that he would be killed by the tribes. The Tribunal raised with the applicant his fears, and he said that he feared the death penalty, namely that they would wound him first and then cause him to die, with black magic. He then said that his wife’s relatives have threatened to put a request for Immigration to force him to return to Papua New Guinea. The Tribunal asked what that meant and he said they will report him to the police who will hit him. The Tribunal asked whether he was suggesting they will make up a new false case about him and he said no. The Tribunal asked what was the basis upon which he would be handed to the police, and he said he does not know, perhaps because of the domestic violence. The Tribunal noted that he had already been through a court process and convicted of assault in Australia. He said he is not suggesting that the authorities will retry him, but that this is the wife’s family’s threats against him, that they will hand him to the police and then the police could mistreat or disfigure him.
In its discussions on this issue, the Tribunal had put to the applicant that it had looked at country information which suggested that the rule against double jeopardy is applicable, and that, as he has already been punished, he should not be punished again: country information indicated that the rule against double jeopardy applied in Papua New Guinea[9]. As noted above he said that it was not the authorities who would do this, it would be his wife’s family who would bring him to the attention of the police for his past assault on his wife. It is a democratic country and there are rights before the law but, if he returns, his wife’s family have the right to come to the law and the law can just follow. The Tribunal asked the applicant if he was making a claim that he will be subjected to the law in Papua New Guinea a second time, for the same offence for which he has already been punished. The Tribunal noted that, if he thought this was the case, it did not understand why he had not researched this and provided evidence on this, noting that he had researched and provided country information in relation to other aspects of his claims; it also did not understand why it was not in his protection visa application form. In response, he said this is not his claim, but he was threatened by these families that if he does not return to the village they will report him to the police.
[9] See Annexure B
The Tribunal has considered his claim that he will come to the adverse attention of the police because his wife’s family will report him to the police in Papua New Guinea as a form of seeking revenge against him. The Tribunal has found that the applicant is not a witness of truth and it has not accepted the applicant’s assertions about what the wife’s family have done or what he claims they will (or that there is a real chance or real risk that they will) do to him in the future. Given the culture of acceptance of domestic violence portrayed by the country information provided by the delegate’s decision record, as well as by the applicant[10]:
- …most communities view domestic violence as a private matter and therefore very few victims report them;
- although domestic violence is regarded as a crime in PNG, very few cases are prosecuted. Since it is unfortunately generally accepted that domestic violence is part of married life, women are often unwilling to report these cases. When victims of domestic violence report assault to relatives, this is usually frowned upon, and the victim does not usually receive any sympathy from relatives or friends;
and the lack of any past adverse attention shown to the applicant by the wife’s family despite, as he stated to the Tribunal, previous beating up of the wife, the Tribunal is not satisfied that the applicant has any genuine fear of harm from the wife’s family, nor does it accept that have they made a threat that they will hand him over to the police or that they will contact immigration. As the applicant’s claim is that he will come to the attention of the police through his wife’s family’s actions, and the Tribunal does not accept this, the Tribunal has considered whether there is any other reason for the applicant to come to the attention of the police/ authorities. The applicant claimed to fear police brutality; the Tribunal does not accept that the applicant has ever experienced police brutality or adverse attention in the past, and while it accepts country information (from both the applicant and DFAT) indicating that there is police brutality in PNG, the Tribunal is not satisfied on the evidence before it that the applicant as a result of his assault on his wife faces a real chance or real risk of coming to the adverse attention of the police in PNG, nor that he faces a real chance of serious harm or a real risk of significant harm at the hands of police in PNG.
[10] TF 92, 92R
Further, having regard to the adverse credibility finding and the evidence before it, the Tribunal does not accept his assertion that, because he has been convicted of assaulting his wife, he will be considered an outcast in the community or to have shamed his tribe or that he faces a real chance or a real risk of being deprived of his human rights.
The Tribunal has considered the applicant’s claims about why he could not reside in Port Moresby. He made those claims in the context of why he could not relocate from his village; the Tribunal however is considering those claims in the context of Port Moresby being his home area. The Tribunal noted the matters raised in his written materials (general crime, violence, police brutality, and his claim of racism), which, apart from his specific claims which were not accepted, he has not claimed have occurred to him in the past. The Tribunal put to him that, in his particular circumstances, it does not appear that he faces a real chance of serious harm or a real risk of significant harm for any or all of these reasons if he returns to Port Moresby.
While the Tribunal accepts that there has been and continues to be violence and crime and police brutality in Papua New Guinea, the Tribunal finds that the applicant (described by [Relative A] as a big strong person), who has lived all of his life in Papua New Guinea, has not been subjected to violence or crime or police brutality (or racism) to date. On the evidence before it, the Tribunal is not satisfied that this particular applicant faces a real chance of serious harm or real risk of significant harm for these reasons upon return to PNG and in the future. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm as a result of the authorities, the political situation, human rights concerns, racism, corruption, or the general security situation in Papua New Guinea.
The Tribunal has considered the applicant’s claims individually, and, on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past harm or future harm feared), as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him.
Complementary protection
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) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any of the past harm or threats or adverse interest as claimed. It does not accept that his home area was his village, that he was a subsistence farmer, and that he had been targeted by his wife’s family or anyone or was involved in any tribal or other clashes, involved in any land disputes, taken any court cases, had any adverse encounters with the authorities, or had any role of any significance or undertook any activities which could be seen as political or advocating on behalf of anyone or against anyone. It does not accept that he was unable to obtain work and thus the only job he could do was a subsistence farmer.
The Tribunal finds that the applicant is an educated male with work experience in PNG, that he has a wife whom he assaulted and from whom he is separated, that he has a conviction for grievous bodily harm against her, and that he has children with whom he has contact now and will continue to have contact with when he returns. It accepts that he may need some surgery (non-urgent) [one] day; however, it is not satisfied that he faces a real risk of significant harm in this regard. The Tribunal finds that he has family in PNG, in particular in his home area of Port Moresby. The Tribunal finds that he has made up and/or exaggerated many claims as to why he cannot return to Papua New Guinea, and that he is not a witness of truth when claiming that he faces a real risk of significant harm. It does not accept that, in his particular circumstances of returning to Port Moresby and obtaining work and accommodation, he faces a real risk of significant harm from his wife’s family, any other tribes, the authorities (including the police or judicial system), general violence or crime, his financial/ employment situation, the education or health system, society, tribal racism, nor for any actual or imputed political reason, or for any reason or from any other source including his previous conviction.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Papua New Guinea, there is a real risk that he will suffer significant harm for the purposes of 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.
Christine Cody
Member

ANNEXURE A - 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 below.
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 below.
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 (DFAT Report on Papua New Guinea country conditions, 10 February 2017), to the extent that they are relevant to the decision under consideration.
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.
…
ANNEXURE B
Double jeopardy is prohibited in Papua New Guinea and the applicant has not indicated, nor is the Tribunal aware, of reports of re-prosecution for crimes committed abroad. The Criminal Code Act 1974 and the Constitution prevent re-prosecution for acts that constitute a criminal offence for which a person has, either on indictment or in a trial, been either convicted or acquitted in a competent court, except where the act caused death or in appeal or review court proceedings of the conviction of acquittal:
16. PERSON NOT TO BE PUNISHED TWICE FOR SAME OFFENCE.
(1) Subject to Subsection (2), a person cannot be punished twice under the provisions of this Code or under the provisions of any other law for the same act or omission.
(2) Subsection (1) does not apply where an act or omission is such that by means of it the offender causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing the death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.
17. FORMER CONVICTION OR ACQUITTAL.
It is a defence to a charge of any offence to show that the accused person has already been–
tried and convicted or acquitted, on an indictment on which he might have been convicted of the offence with which he is charged; or (b) acquitted on indictment, or convicted, of an offence of which he might be convicted on the indictment or complaint on which he is charged.
‘Criminal Code Act 1974 (2006) (Independent State of Papua New Guinea), As amended to 2006 (to Act ‘No. 27 of 2002’),’ Office of Legislative Counsel, Papua New Guinea, Sections 16 & 17, NATLEX database, CISBE8E6BE757:
37 (8) No person who shows that he has been tried by a competent court for an
offence and has been convicted or acquitted shall again be tried for that offence or
for any other offence of which he could have been convicted at the trial for that
offence, except upon the order of a superior court made in the course of appeal or
review proceedings relating to the conviction or acquittal: ‘Constitution of the Independent State of Papua New Guinea 1975 [2001] (Independent State of Papua New Guinea)’, 15 August 1975, Section 37 (8), CIS23838
Further,
Extract from Journal of South Pacific Law:
II. THE FRAMEWORK OF CRIMINAL PROCEDURE
1. Constitutional rights
All of the jurisdictions of the South Pacific region, with the exception of Tokelau, have written constitutions.[13] All of these constitutions, except that of Niue, contain provisions on fundamental rights and freedoms, including guarantees of a range of rights respecting the criminal process. [14]^………
A standard model of constitutional rights was developed for the former British dependencies in the South Pacific. The original model is still in effect in Kiribati, Solomon Islands and Tuvalu, where constitutional rights are substantially the same in structure, content and expression. Some amendments were introduced in Fiji Islands through its 1997 constitution but the heritage is still clearly discernible. The British model was also adopted for the Nauru constitution, despite the historical role of Australia in its administration. The constitution of Papua New Guinea covers similar ground but is drafted in different terms.
Notable features of the British model are the range and specificity of the provisions. The components of the model are: general declarations of the right to ‘life, liberty, security of the person and the protection of law’ and of the right to protection for the privacy of a home and other property;[15] statements of the justifications for depriving a person of liberty and of the rights of a person who is arrested or detained;[16] a prohibition on searches without consent except under specified conditions;[17] and a set of provisions labelled ‘Provisions to secure protection of law’.[18] Under the latter heading, there is: a general guarantee of a fair hearing within a reasonable time by an independent and impartial court;[19] a declaration of the right to be presumed innocent until proved or having pleaded guilty;[20] a series of specific rights respecting the trial process such as a right to information about the charge and a right to adequate time and facilities for the preparation of a defence;[21] a prohibition on retrospective changes in the law;[22] a prohibition on certain forms of double jeopardy;[23] and a guarantee of the right of an accused not to be compelled to give evidence.[24] The original model guaranteed the right of an accused to be defended ‘at his own expense, by a representative of his own choice’. This is still how the right respecting counsel is framed in Kiribati, Solomon Islands and Tuvalu.[25] In Fiji Islands and Nauru, however, there is now an additional right to have counsel provided where ‘the interests of justice’ require this.[26] Fiji Islands, together with Papua New Guinea, has also given constitutional recognition to rights to appeal against conviction or sentence.[27]
With respect to the specificity of the provisions, an example is the prohibition on double jeopardy. The prohibition, which covers the ground of the common pleas of autrefois acquit and autrefois convict, specifically extends to a retrial following a pardon and specifically excludes a retrial following an appeal.[28]

[2017] AATA 2000

17 October 2017

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Immigration

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Procedural Fairness

Statutory Construction

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