1724543 (Refugee)

[2021] AATA 3616

1724543 (Refugee) [2021] AATA 3616 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1724543

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Brendan Darcy

DATE:20 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 20 August 2021 at 9:28am

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – religion – Jehovah’s Witness – particular social group – whistle blower – unlawful dismissal – mishandled legal proceedings – legal action against employer – fear of killing – police violence – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2; rr 1.05, 1.12

CASES

SZRSN v MIAC [2013] FCA 751

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of the Independent State of Papua New Guinea/Stet bilong Papua Niugini (Papua New Guinea or PNG), applied for the visas on 20 October 2014 and the delegate refused to grant the visas on 3 October 2017, on the basis that the applicant’s claimed fears of harm were not for any Convention reasons.

3. In this decision, the first named applicant will be referred to as the first applicant or the applicant; the second named applicant as the second applicant or the applicant’s wife; and the third named applicant as the third applicant or the applicant’s child. Claims for protection are only made in respect to the first applicant; the remaining applicants are applying as members of the family unit.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

9. The issue in this case is whether the applicants engage Australia’s protection obligations.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The first applicant claimed to be born on [date] in the capital city of PNG, Port Moresby, and to be a citizen of PNG. A copy of the applicant’s passport, issued [in] 2014, indicates the first applicant to be born in ‘[location]’; the passport’s details otherwise match the claimed identity of the applicant.  

12. The second applicant claimed to be born on [date] in Port Moresby, PNG, and to be a citizen of PNG. A copy of the second applicant’s passport, issued [in] 2009, indicates the applicant to be born in ‘[location]’; the passport’s details otherwise match the claimed identity of the applicant. 

13. It is claimed on behalf of the third applicant he was born on [date] in the capital city of PNG, Port Moresby, and is a citizen of PNG. Two passports were submitted for the third applicant, one issued [in] 2014 and valid at the time of the visa application bearing the applicant’s claimed name and birth date, and another issued [in] 2004 bearing the same name but a different birth date of [date]. As detailed in the delegate’s decision, the first applicant explained the earlier passport contained an error in the date of birth, which is actually [date] as reflected in the current passport.

    Applicants’ travel and visa histories

14. The applicants’ migration and visa histories in and out of Australia, as detailed in the delegate’s decision based on both Departmental information and information provided by the applicant, is as follows (next page):

Event Details
Date	First applicant	Second applicant	Third applicant
[Sep] 1988	Arrives in Australia
[Sep] 1988	Departs Australia
[Jun] 1992	Arrives on 670 visa
[Jun] 1992	Departs Australia
[Jul] 1992	Arrives on 673 visa	Arrives on 670 visa
[Jul] 1992	Departs Australia
[date]	Third applicant born
[Aug] 1998	Arrives in Australia on TX-771 visas
[Aug] 1998	Departs Australia
06 Oct 1998	Arrives in Australia on TX-771 visas
[Oct] 1998	Departs Australia
[Jan] 2005	Arrives on TU-576 visa
[Mar] 3005	Arrives on TU-576 visa	Arrives on TU 576 visa
[Apr] 2005	Departs Australia
[Apr] 2005	Arrives on TU-576 visa
[May] 2005	Departs Australia
[May] 2005	Arrives on TU-576 visa
[Jul] 2007	Departs Australia
[Jun] 2008	Arrives on TE-421 visa
[Jul] 2008	Departs Australia
[Jul] 2009	Arrives on TE-421 visa
[Jul] 2009	Departs Australia
[Sep] 2010	Arrives on TR-676 visa
[Sep] 2010	Departs Australia
[Jan] 2012	Arrives on TU-576 visa
[Mar] 2012	Arrives on TU-576 visa
[Jun] 2012	Departs Australia for PNG
[Jul] 2012	Arrives on TU-576 visa
[Aug] 2012	Arrives on TU-576 visa
[Dec] 2012	Arrives on TR-676 visa
[Jan] 2013	Departs Australia
[Feb] 2013	Departs Australia for PNG
[Mar] 2013	Arrives on TU-576 visas
[Apr] 2013	Arrives on TR-676 visa
[May] 2013	Departs Australia
[Jun] 2013	Departs Australia for PNG
[Jul] 2013	Arrives on TR-676 visa
[Aug] 2013	Arrives on TU-576 visas
[Aug] 2013	Departs Australia
[Dec] 2013	Departs Australia for PNG
[Feb] 2014	Arrives on TU-576 visas
[Jul] 2014	Arrives on FA-600 visa
[Oct] 2014	Protection visa application lodged
[Nov] 2016	Protection visa interview

Written claims for protection

1. The applicant’s written claims for protection are first advanced in responses to questions on the protection application form, dated 20 October 2014, which can be summarised as follows:

   ·The applicant is seeking protection in Australia, so he does not have to return to PNG.

   ·The applicant left PNG for to study a [Course 1] in Australia

   ·He has experienced emotional and mental harm in PNG and suffered work-related politics and jealously as a Jehovah’s Witness, having been appointed an Elder in 1995; his employment was untimely terminated in 2002 after [number] years working with [Employer 1].

   ·He and his family were forced out of a company property by armed private security and PNG Police after his termination was announced.

   ·The applicant brought a lawsuit against [Employer 1] for wrongful suspension due to his religious activity in 2004 and later instituted proceedings in relation to the termination of his job, for which he is awaiting a settlement outcome.

   ·He was affected emotionally due to delays in the eight-year proceedings and setbacks including the death of his lawyer in [2013] and the presiding judge in [2014].

   ·The applicant returned to PNG in 2012 and 2013 during his semester breaks to meet with his lawyers and to attend to matters arising from his court case.

   ·After a verdict [in] 2012 in his favour, the applicant realised in January 2014 that he and his family now face imminent dangers within ‘PNG systems’.

   ·The applicant believes a settlement would have an adverse impact on all the members of the [employing agency] and may send the [organisation] into insolvency, for which there will be retaliation against him by the defendants and [their] officials.

   ·The applicant fears he and his family will be shot in reprisal by ‘Elements’ controlled by elite, influential persons, including discretely by senior government personnel.

   ·The applicant also fears PNG police brutality and those collaborating with police.

   ·He also fears being killed by frustrated members of the public and people affected when their savings are lost due to the settlement in his favour.

   ·He believes his entire family will be targeted as he is the beneficiary of the settlement.

   ·The applicant fears the police, senior executives from state and government agencies who hold powerful positions

   ·Snipers can be hired to shoot citizens because of their religious or political opinions

   ·The applicant believes his government will not protect him and his family, and he is an innocent victim since the state agencies representing the government do not abide by court orders themselves.

2. In the same application form, and later in two Form 80 (personal particulars) lodgements dated 20 October 2014 and 20 November 2014, the applicant outlined that he speaks, reads and writes English, Melanesian Pidgin (Tok Pisin) and Hiri Motu. He declared both his ethnicity and religion as Jehovah’s Witness and indicated he was married to the second applicant in July 1987 in Port Moresby. He declared he lived at 12 separate addresses in PNG from 1984 to 2011, and at six different addresses in Australia, across [specified states], from 2005 to the date of application.

3. The applicant indicated he completed a [Course 2] at [College 1], Lae, PNG, in 2004, [Courses 3] at [College 2] in 2007, and a [Course 1] at [University 1]  in 2014. He declared he was employed as [an occupation 1] in Port Moresby [between specified years], then as [a specified role] and then [Position 1] at [Employer 1] from [specified year] to 2002. He was then a self-employed [position] at [a named business] from 2003 to 2005, and a [position] at [Employer 2] from 2007 to 2011.

4. The first applicant declared his wife, the second applicant, and two sons: the third applicant and [Child B] (born [DOB]), as immediate family members. He stated his adoptive mother and father, and one [sibling], are deceased, and additionally declared [specified siblings] as non-migrating family members.

5. The Tribunal notes that the third applicant was aged [age] at the time of application and that he declared his relationship status at the time of application as ‘never married or been in a de facto relationship’.

6. The applicant provided the Department with several court documents, media articles, letters of support, writings on scripture and other submissions in support of his application. The Tribunal has had regard to all these submissions, which include:

   ·Letters of support from [name], [business name], dated 26 June 2014; [name], Jehovah’s Witness Elder, dated 5 July 2014; [name], [business name], dated 21 July 2014; [name], personal friend, dated 14 July 2014; [name], personal friend, dated 7 August (no year); [names], friend and church elder, dated 25 September 2014;

   ·Affidavits dated 13 July 2012 and amendments filed 22 February 2013 and February 2014 regarding monetary damages sought by the applicant, totalling PNG Kina (K) [amount] (AUD $[amount]), then later K [amount] (AUD $[amount]), and finally K [amount] (AUD $[amount]).

   ·Court case decision papers concerning the proceedings between the applicant and defendants [Mr A] and [Employer 1], dated [in] 2012, which find in the applicant’s favour

   ·Australian and PNG police clearance certificates, and certificate of birth entry, all in the name of the applicant.

   ·Papers filed with the PNG [Court 1] in proceedings by the applicant against [Lawyers 1].

7. In October 2016, the applicant provided the Department with additional information and amendments to his claims, which the Tribunal has considered and can be summarised as follows:

   ·After setbacks in the court case he filed in 2004, the applicant is now suing [Lawyers 1].

   ·[Lawyers 1] deliberately misguided his case as they were influenced by certain ‘Elements’.

   ·Lawyers [Lawyer A] and [Lawyer B] are both associated with the Royal Papua New Guinea Constabulary (RPNGC) since [Lawyer A] worked for the RPNGC in [a named area], while [Lawyer B] is [closely related to] –[a named] former RPNGC [officer].

   ·[Lawyer B’s] [named relatives], are also financial members of the [Employer 1].

   ·Very powerful, influential, hierarchy personnel known as ‘Elements’ therefore had direct involvement in controlling these people.

   ·The applicant is very fearful given these ‘Elements’ orchestrated, rigged and sabotaged his legal case [number].

   ·The applicant's [named relative] from [Lawyers 2] in Port Moresby and [Lawyer C] of [Lawyers 3] have assisted and helped him file a new claim against [Lawyers 1].

   ·In August 2016, the applicant's [PNG] bank accounts were erroneously cancelled or frozen and he believes powerful and influential ‘Elements’ sabotaged his financial affairs to cause him significant economic hardship.

   ·The applicant claims he has been mistreated by authorities from 2004 to 2016 and he has suffered emotionally and mentally because of the professional misconduct by his lawyers.

   ·He has suffered misrepresentation by the PNG judiciary, by paid commercial lawyers and by unauthorised bank account cancellations.

   ·The applicant suffered a [medical condition] [in] October 2015 and continues to suffer ongoing medical aliments stemming from this event.

   ·The applicant strongly fears he and his family will be shot by Elements who are controlled by elite influential personnel.

   ·He may have his vehicle tailed, held up and kidnapped, or he will be killed in a break and enter, or he will be murdered sniper style, or harassed by authorities during road blocks.

   ·The applicant claims powerful and influential personnel have succeeded in derailing his settlement legal case and he fears the effect of other “significant harm, physical harm, ill-treatment and ongoing looming threat” on his return to PNG.

   ·He does not believe the authorities of that country can and will protect him because the PNG police department is easily influenced by ‘Elements’.

8. On 2 November 2016, the applicant was interviewed by a Departmental officer in relation to his application. The Tribunal has had regard to the available parts of this interview, and it is referred to where relevant below.

9. A delegate of the Minister refused the applicants Protection visas on 3 October 2017. The applicant validly applied for review of this decision to the Tribunal on 10 October 2017, attaching a copy of the primary decision to the application.

10. The applicant has provided a number of documents and submissions to the Tribunal, which are summarised as follows:

    ·Statement of arguments by the applicant, dated 8 December 2017.

    ·Proposed agenda, timeline of events, past and current experiences of persecution, religious background and country information, dated 31 January 2021.

    ·Prehearing submissions including documents noted above, various statements, court documents and related attachments, dated 27 May 2021.

    ·Further pre-hearing submissions and related attachments, dated 3 June 2021.

11. The Tribunal hearing was held on 11 June 2021, in which the first and second applicants provided face-to-face evidence and presented arguments as to the reasons they are owed Australia’s protection obligations. The third applicant provided evidence via telephone at the same hearing.

12. At the end of the hearing, the applicants were provided with a post hearing opportunity to forward any further documents for the Tribunal to consider, and to do so by 25 June 2021.

13. On 24 and 25 June 2021, the Tribunal received the following documents, including:

    ·A twelve-page summary of the reasons the applicants hold fears well-founded fears of persecution, if returned to Papua New Guinea;

    ·A 2001 statement on RPNGC letterhead addressed to [Mr A], the [Executive 1] of [Employer 1], by [another executive] of [Employer 1], [Mr B]. The letter is a petition to [Mr A] not to transfer the first applicant to [a location] and a third person from [that location] to Lae.

    ·A 2015 affidavit indicating the first applicant sought to litigate against [Employer 1] for lost wages in a PNG court and that [Lawyers 1] were representing him;

    ·An email dated [in] October 2015 indicating that the first applicant’s litigation had been adjourned until [December] 2015;

    ·Birth certificates issued in the in [Australia] indicating the third applicant is the father of [named children]  [with dates of birth specified]; 

    ·A copy of the valid PNG passport pertaining to the third applicant’s spouse, [Ms A], born on [date];

    ·An acknowledgement letter dated 21 May 2020 indicting that the spouse and [children] of the third applicant has applied for protection visas;

    ·A 2014 [social media] entry indicating that it was reported that [an executive] of [a business] received a distinguished service award from [an international body];

14. The applicants were not represented in relation to this application for review.

    Non-disclosure certificates

15. The Department files associated with this application, [file numbers], do not contain any certificates restricting disclosure of information within the file.

    Country information: Papua New Guinea

1. The most recent DFAT country information report on PNG, dated 10 February 2017, states the following about religion:

   RELIGION

   3.6 The 2000 National Census (the most recent to provide detail on religious affiliation) found that 98 per cent of PNG citizens identified themselves as Christian. Of this number, approximately 27 per cent were Roman Catholic; 20 per cent Evangelical Lutheran; 12 per cent United Church; 10 per cent Seventh-Day Adventist; 9 per cent Pentecostal; 5 per cent Evangelical Alliance; 3 per cent Anglican; and 3 per cent Baptist. Other Christian groups, including The Church of Jesus Christ of Latter-Day Saints (Mormons), Jehovah’s Witnesses, and the Salvation Army, together constituted 9 per cent. Baha’is, indigenous or other beliefs constituted the remainder.

   3.8 There is a strong tradition of ecumenicalism in PNG, and the churches in particular maintain strong and productive working relations. Most PNG citizens integrate Christian faith with some indigenous beliefs and practices. These can range from belief in sorcery, to widespread attribution of events, behaviour and poor health to animalistic forces.

   Legal Policy Framework and Protection Against Discrimination

   3.8 Article 45 of the Constitution guarantees individuals the right to ‘the freedom of conscience, thought and religion and the practice of his religion and beliefs’, except to the extent that the exercise of that right infringes on another person’s rights or where it violates a public interest in ‘defence, public safety, public order, public welfare, public health, the protection of children and persons under disability, or the development of under-privileged or less advanced groups or areas. This has consistently been interpreted to mean that any religion may be practiced or propagated as long as it does not interfere with the freedom of others, including traditional beliefs or customs. Although PNG has no state religion, the predominance of Christianity in the country is recognised in the preamble of the Constitution, which refers to ‘our noble traditions and the Christian principles that are ours’.

   3.9 In December 2013, the Speaker of Parliament replaced a totem pole in the main hall of parliament and masks over the main entrance with a Christian unity pole and biblical text, respectively. A range of secular and religious leaders condemned the action, including the Catholic Bishops Conference which issued warnings about the rise of Christian fundamentalism as a risk to the country’s traditional identity. In May 2016, a PNG Court ruled that the Speaker’s actions were illegal and ordered the reinstallation of the totem pole.

   3.10 An increase in the number of conversions from traditional Christian denominations to both Pentecostal/ charismatic Christianity and Islam in recent years has led some established churches and public figures to question the desirability of these developments.

   3.11 DFAT assesses that PNG citizens are generally able to practice their religion without interference from the state and are able to do so without societal discrimination or violence.

2. DFAT reports the following regarding the status of the legal system:

   Judiciary

   5.12 The PNG legal system is based on English common law. Section 37 of the Constitution (‘Protection of the Law’) provides for a presumption of innocence and due process, including a public trial. PNG does not have a jury system, and judges conduct trials and render verdicts. The Public Solicitor’s Office provides legal counsel for those accused of ‘serious offences’ (for which a sentence of two or more years is the norm) who are unable to afford counsel.

   5.13 The Supreme Court is the highest court in PNG. Its powers and procedures are provided for by Section 184 of the Constitution, the Supreme Court Act and the Supreme Court (Amendment) Act (2012). The Supreme Court hears appeals from decisions made by the National Court; reviews decisions made by the National Court (concerning matters of which the law does not allow for appeals to be made); gives opinions or advice on whether a proposed law or already made law by Parliament is constitutional; develops rules of the underlying law; and enforces human rights as provided under the Constitution. The National Court hears both criminal and civil cases involving claims of PGK10,000 (AUD4,600) or above. It also hears appeals from decisions made in District Courts.

   5.14 District Courts have a diverse jurisdiction, which includes family law matters, small civil matters, and indictable and summary offences. For most PNG citizens, District Courts are the main face for the formal judicial system. The District Court system includes the Coroner’s Court, Juvenile Court, and Land Court, which were all established by various acts of legislation. There are 70 District court establishments and more than 400 gazetted court holding places throughout PNG.

   5.15 The efficient functioning and operation of District Courts is the responsibility of Magisterial Services. The Chief Magistrate heads Magisterial Services, assisted by two Deputy Chief Magistrates at the Port Moresby Headquarters, and by Senior Provincial Magistrates located at each provincial location. A review of Magisterial Services conducted in 2015 identified a number of serious structural issues inhibiting the functioning of District Courts around the country, the most significant of which was a large and growing case backlog and organisational capacity constraints. The review also highlighted as a concern insufficient recurrent funding allocations.

   5.16 The US State Department found in its 2015 Human Rights report that the government generally respected the independence of the judiciary. However, a shortage of judges created delays in both the process of trials and the rendering of decisions. The UN noted in 2014 that there were allegedly over 4,000 arrest warrants outstanding, some of which dated back to the 1980s.

   5.17 Access to lawyers is a concern in PNG. There are a limited number of lawyers in PNG, particularly those practicing criminal law, and many people are unable to afford their fees. The Office of the Public Solicitor provides free legal assistance in respect of civil and criminal matters to those who are unable to afford a private lawyer, and in the case of criminal matters to those facing a sentence of two or more years. However, the Office finds it difficult to attract lawyers due to the limited benefits it is able to offer, in particular, in the area of housing. Pro bono representation is uncommon in PNG.

   ASSESSMENT OF CLAIMS AND FINDINGS

   Country of reference

3. The applicants provided copies of their PNG passports which are on Departmental file. On the same file is a copy of the second applicant’s Certificate of Birth Entry.

4. Based on these documents and without evidence to the contrary, the Tribunal finds that the applicants are citizens of PNG, that PNG is both the first and second applicant’s country of nationality for the purposes of the Refugees Convention, and that PNG is their receiving country for the purposes of complementary protection.

   Third country protection

5. With no evidence to the contrary, the Tribunal finds that the applicants have no right to enter or reside, either temporarily or permanently, any safe third country for the purposes of s.36(3) in the Act.

   Members of the same family unit

6. The first and second applicants have consistently presented to the Department and the Tribunal as a married couple. There is a marriage certificate on the Departmental file. The application for a protection visa states they were married in January 1987 and that they have [specified children].

7. With no evidence to the contrary, the Tribunal is satisfied the first and second applicants are in a genuine spousal relationship and that the second applicant satisfied clause 1.12(4)(a) of the Migration Regulations and that she has membership of the same family unit as the first applicant for the purposes of this application for review.

8. It is claimed that the third applicant is the one of the [children] of the first and second applicant.

9. While the Tribunal is satisfied that the first and second applicants are biologically related to the third applicant, the evidence, cumulatively considered, indicated that the third applicant was a dependent on either of the other applicants. Firstly, the third applicant had not been living in the same shared household as the other applicants. Secondly, the third applicant moved away from [the city] where his parents resided to [another city]. Thirdly, the third applicant was in a shared household with his de facto spouse, [Ms A] (DOB: [specified]), with whom the third applicant has [specified children with dates of birth noted]. It is noted that the third applicant has been in this spousal relationship on a long-term basis and resided with his parents for a notable period of time. The first and second applicants have argued the third applicant was dependent materially on them as the third applicant does not have work rights attached to his current bridging visa.

10. The third applicant is an adult, raising a child with his de facto wife in a city thousands of kilometres away from his parents. Furthermore, the third applicant told the Tribunal that he worked [in an occupation] in Port Moresby before attempting to settle in Australia. There is no indication he is incapacitated or has a disability. The evidence strongly indicates the third applicant has the capacity to seek and work on a full-time basis, regardless of current dependency on his parents due to his lack of work rights. The weight of evidence is that the third applicant is neither wholly or substantially reliant on his father or his mother for financial, psychological or physical support at the time of this decision. Based on these accepted circumstances at the time of this decision is made, the third applicant does not satisfy the regulatory requirements in relation to dependency: subregulation 1.05A(2).

11. For reasons above, the Tribunal finds that third applicant is not a member of the same family unit as the first and second applicants. He therefore does not satisfy clause 1.12(4)(b) of the Regulations.

    Findings

    Accepted circumstances of the applicants

12. The Tribunal found the applicants to be largely credible in evidence it provided.

13. The Tribunal accepts that the first applicant was born in [year] in Central Province and that the second applicant was born in [year] in Central Province. It further accepts that they both belong to the Christian denomination known as the Jehovah’s Witnesses, and they have been active in this Christian community while in Papua New Guinea.

14. It accepts that as a result of their spousal union, they have [specified children]: [Child B] (DOB: [specified]), who resides in Port Moresby; and the third applicant. [Detail deleted.] At the time of making this decision, the first and second applicant have remained married and are not separated or divorced.

15. It also accepts that the third applicant was born in [year] and is in a spousal relationship with a Papua New Guinean national and that with her, the third applicant has [specified children]. It also accepts that the third applicant’s partner and [children] have applied for protection visas and that those visas are not fully determined at the time of making this decision.

16. The Tribunal notes that prior to coming to Australia, the applicants, including the first applicant’s [children], resided in Port Moresby. Noting that the first applicant was born and raised in Port Moresby and that the applicants have a close family member living in Port Moresby, the Tribunal finds that Port Moresby is the applicants’ home area for the purposes of determining whether or not each of the applicants satisfy s36(2)(aa) and s.36(2)(aa), if they were to return to Papua New Guinea.

17. The applicants at various times resided in other parts of Papua New Guinea due to the first applicant’s past employment.

18. More relevantly to the applicants’ dispositive claims, the Tribunal acknowledges and accepts the applicants are all members of Jehovah’s Witnesses, a Christian denomination. The first applicant to be a third generational member of the faith tradition; that he baptised in his accepted religion in 1982 and that he held a later role as ‘elder’ in his accepted religion and that the applicants have been well integrated and respected in that faith community.

    The applicants’ dispositive claims for protection

19. It is the applicant’s overall claim that they will face a real chance of serious harm for a Convention reason or a real risk of significant harm based on their accepted religion, namely as a Jehovah’s Witnesses, if they were to return to Papua New Guinea. As outlined below, the applicants have also claimed that in combination with their religion, they will suffer a real chance of serious harm or a real risk of significant harm, as litigants and because the first applicant claimed to be imputed as a whistleblower, if they were to return to their country of nationality and reference.

20. However, on balance, the Tribunal found the first applicant’s claims to be far-fetched, unconvincing, and at times, embellished or exaggerated, for the following reasons.

21. It is critical to the applicants’ claims that while the first applicant was worked for [Employer 1], he and [Mr A], who also worked at [Employer 1], had both progressed to the position as Ministerial Servants within the Jehovah’s Witnesses. This qualified them to assist congregational ministers and elders. At [Employer 1], [Mr A] held the position of [Executive 1] who was in a more senior role than the first applicant. It is further claim that the applicants and [Mr A’s] family enjoyed a harmonious relationship. Around mid-1995, however, when both families were both living in Lae, the first applicant was promoted to ‘elder’ status within the Jehovah’s Witnesses. The first applicant claimed that this news did not sit well with [Mr A] and that he started act with jealously and vindictiveness towards him.

22. The first applicant said he was first vindictively harmed after an investigation in [an internal matter] led to his salary being reduced by 15 per cent as well as emotional and reputational damage in 1996. Then he was then the applicant to undertake perilous tasks, such as road trips to remote villages in the Western Province in 1997. Then, in 2001, the applicant was then further accused of wrongdoing when led to his being suspended and having his salary reduced a second time. The applicant attempted to appeal the decision but was denied any further adjudication by [Employer 1’s] board. This eventually led the first applicant’s employment being terminated in 2002.  The first applicant said it caused considerable personal embarrassment and humiliation to him and family, not least eviction from their residence that followed his dismissal.

23. Based on the written, oral and documentary evidence, the applicant successfully litigated against [Employer 1] for unlawful dismissal and was awarded damages in 2012. 

24. Overall, the Tribunal accepts this account to be credible.

25. On behalf of the applicants, the first applicant has characterised his treatment by [Mr A variant] and the board of [Employer 1] as religious persecution, claiming that [Mr A variant] motivated to harm the first applicant and his family out of jealousy for his more senior role among the Jehovah’s Witnesses. The first applicant claimed [Mr A variant] abused his secular position of [Executive 1] to punish or harm the applicants economically and reputationally. The first applicant claimed this behaviour amounted to religious persecution.

26. However, this kind of treatment that the applicants has historically endured occurred by a member of their own congregation appears to be motivated or triggered out of jealously, envy or malice. It was not a dispute over any religious or theological matter. Furthermore, the applicant was provided the protection of his society, in that he successfully sued for damages. At the hearing, the first applicant estimated the settlement to [amount] PNG Kina (which is the equivalent of about [amount] Australian dollars).

27. While the Tribunal accepts the past harm occurred, the Tribunal does not accept the first applicant’s otherwise treatment while as an employee of [Employer 1] cannot be characterised as the applicants having experience religious persecution.

28. Having won this civil matter in 2013, the applicant continued to litigate against the law firm, [Lawyers 1], for professional misconduct in 2016. He claimed that he returned to Port Moresby in 2103-2014 for three months to discuss the progress of the litigation but there were delays, one of which was caused his [lawyer] from [Lawyers 1] having passed away in [2013].

29. In the applicant’s written claims prior to the hearing and during the hearing, the first applicant expressed concerns that his lawyers at [Lawyers 1] were associated with ‘elements’ sympathetic with [Employer 1] and had been sabotaging his litigation. He further claimed he feared retaliation against himself and his family, not just for his successful case, but his ongoing litigation that was not settled or fully determined at the time of this decision.

30. The applicant did not return to work at [Employer 1] after 2002. Instead he remained in Lae until 2010 where he found worked at his [relative’s] [product] business, then his other [relative’s] [service] business. During his time, his wife maintained a role as a public servant in [a named agency].

31. Between 2010 and 2014, the first applicant returned to Port Moresby with his family. During this time, the first applicant worked at a [service] business, [Employer 2], owned by a fellow Jehovah’s Witnesses congregant. At the hearing, the applicant claimed to have known poor practices at the customs, which included the importation of arms and that the authorities were permitting it. However, after some questioning the applicant admitted not to have witnessed any importation of arms which the authorities were permitting (presumably for nefarious reasons) but that it was he manager of the agency reported the irregularity. The applicant claimed that as the whistleblower was a Jehovah’s Witnesses, he will be imputed as a whistleblower too. The first applicant further claimed that as all the customs authorities were linked up with the RPNGC, the first applicant fear this was connected to stymying his litigation.

32. The Tribunal also received oral evidence that the first applicant did not just fear poor or unhanded professional behaviour, but they had a conflict of interest as lawyers at [Lawyers 1] were connected with the RPNGC and were working to stymie his litigation. He also claimed the RPNGC wanted to harm this family as the first applicant had taken money away from ordinary members of [Employer 1]. When the Tribunal put it to the applicant, that [Employer 1] would have been indemnified against such disputes as is typical of large organisation, the first applicant said he had not thought of that. The Tribunal finds the first applicant has misunderstood how organisations with substantial numbers of employees use indemnifying insurance to mitigate against litigation. The Tribunal does not accept [Employer 1] has not taken steps to indemnify itself from litigation so as to protect member’s savings and its investments. This finding critically undermines the first applicant’s general contention that the [Employer 1] risked insolvency or involuntary administration due to his litigation, which will to the applicants facing recriminations by RPNGC officers who are members of [Employer 1].

33. During the hearing, the first applicant insisted that while [Mr A] remains motivated religiously to persecute him.  He further claimed the other challenges at a customs agency and with the lawyers were all connected to his elevation to eldership over [Mr A]. He also contended that [Mr A] is now disassociated with Jehovah’s Witnesses (‘defellowshipped’) but he, from his secular position within [Employer 1], remains religiously motivated to harm the applicant, if he and his family return to PNG into the reasonably foreseeable future.

1. The first applicant’s specific fears arising from retaliation, including the family members facing police brutality, being killed by the police, being shot by elements directed by senior members of the government agencies, including members of the RPNGC. In one of the written claims made by the first applicant, it was claimed he feared being targeted by snipers. However, the first applicant retracted that suggestion while maintaining that should they return his family feared being harmed or even killed at police road blocks, as the family had threatened the solvency of the [Employer 1] [which would affect] police officers throughout PNG. News reports of police brutality in PNG were also submitted to the Department.

2. The Tribunal enquired whether the first applicant, the other applicants or his son and family back in Port Moresby had received any direct threats or experienced from [Mr A] or any other person, to which he responded he had not. It enquired if had received any threats or since arriving in Australia, to which he responded as ‘no’.

3. Overall, the Tribunal found aspects of the applicants’ claims to be targeted by ‘elements’ of PNG society and that the applicants was being targeted and remains targeted by ‘elements’ for the significant and essential reason being their religion and/or his litigation, if they were to return to PNG, on the basis to be unsubstantiated and fanciful which was advanced to exaggerate his otherwise personally held suspicions that [Mr A] remains resentful.

4. That is not to suggest the applicant did not endure a toxic workplace at [Employer 1] whereby he was eventually dismissed. After all, there are court documents to support that. That is not say the applicant was not successful in being awarded a sizeable amount of money for damages arising from his mistreatment and unlawful dismissal. The Tribunal accepts that the applicant experienced firsthand that toxic workplace at [Employer 1].

5. Critically it is important to acknowledge that the first applicant’s otherwise successful litigation against his former employer was prolonged, lasting over nine years. However, this is not atypical for matters in the PNG courts, which the first applicant acknowledged at the hearing. In this respect that first applicant’s claims that it was due to poor professional conduct of some allegedly conflicted lawyers at [Lawyers 1] and/or by court officials appears weak and unconvincing. However, that is for a court in PNG to determine.

6. The first applicant further stretched the Tribunal’s credulity by claiming that he was being targeted to be killed by members of the RPNGC. While the first applicant dropped the claim that snipers will target him or his family, he continued with fanciful suggestions that RPNGC members knew he successfully sued [Employer 1] and wanted or were directed to take revenge at police roadblocks and other opportunities. The fanciful nature of the claim was further highlighted by the applicant admitting that none of the applicants experienced direct threats or that the eldest child of the first and second applicant has lived in PNG on a continual basis without being threated, intimidated or harmed by the authorities. The Tribunal does not accept, as suggested by the second applicant, that it because their son residing and working in Port Moresby behaves cautiously and lives on the margins of Port Moresby, given the authority and reach of the RPNGC is national and not restricted to parts of Port Moresby.

7. The first applicant has also included in his claims that a bank account had been suspended and that judicial officers have been critical of the first applicant. These, the first applicant advanced, was further evidence of ‘Elements’ undermining his reputation and threatening and intimidatory behaviour. The Tribunal notes the applicants have not provided any documentary evidence of a suspended bank account or judicial comments. The Tribunal accepts these incidents occurred; however, in the context of the other aspects of past incidents not amounting being persecutory and the general fanciful and far-fetched nature of many of the applicants’ claims about foreseeable harm, the Tribunal places very little weight on these incidents as compelling evidence to support his overall dispositive claims to face a real chance of serious harm or a real risk of significant harm for the reason claimed, should the applicants return to PNG.

8. Had the first applicant genuinely believed that influential members of PNG society, including resentful and vengeful members of the RPNGC, held wanted to harm the applicant then those persons were in a position to harm the applicants over a long period of time, including when the applicants variously returned to PNG as they did often and as a late as 2014. Indeed, the first and second applicants returned to Port Moresby for a period of four months, and the third applicant for a longer period without being threatened, harmed or harassed.

9. The Tribunal accepts the first applicant genuinely holds that the lawyers against whom he is litigating provided services that fell below the high professional standards expected of such qualified solicitors and barristers and other members of the bar association throughout PNG. It accepts that because his whole family were beneficiaries of the settlement and there is remote and far-fetched chance that the family will be subject to some envy or resentment. However, the Tribunal does not accept that such members of the police, legal fraternity or anyone else in authority are motivated by any other ill-will or harm towards the applicants than what is permitted by laws of PNG, should the applicants return.

10. The Tribunal found the claims that such persons would be motivated to join in other ‘elements’ of influential members of PNG society to seriously harm or kill the first applicant and his parents to be fanciful and wilfully exaggerated, to embellish the first applicant’s otherwise genuinely felt suspicions that [Mr A] continues to harbour ill-will towards the applicants despite the passage of time.

11. In the one of the applicants’ pre-hearing submissions, he provided several unreferenced examples of alleged religion discrimination and persecution in his former employer, [Employer 1]. Having read each of them, the Tribunal notes that they were historical and not recent, with alleged incidents occurring in 1990s, 2002 and 2010. The written incidents themselves are vague and lack explicit claims about religious persecution or even the reasons for them. They do, however, leave an impression of some unethical behaviour at [Employer 1] leading to the termination of employment by Jehovah’s Witnesses. The applicant has not provided any independent reporting to corroborate his otherwise vague claims. Noting that the applicant and [Mr A] have been employed and promoted within [Employer 1], the Tribunal accordingly places very little weight on these accounts as evidence of systematic discrimination towards Jehovah’s Witness within [Employer 1] and in the labour market more generally. 

12. The Tribunal acknowledges that PNG has not historically been welcoming towards Jehovah’s Witnesses. However, neither the Australian colonial officials nor the post-colonial authorities of an independent PNG supported calls to ban the Witnesses by some other denominations and by returned soldiers. DFAT, however, assesses that PNG citizens are generally able to practice their religion without interference from the state and are able to do so without societal discrimination or violence. According the PNG Ombudsman website, there is an anti-discrimination and human rights legislation that makes it unlawful to discriminate on the basis of religion and the Ombudsman Commission under the PNG Constitution can investigate any case of an alleged or suspected discriminatory practice within the meaning of the laws prohibits such practices.[1] According to the JW.org website, there are around 115 Jehovah’s Witness congregations with as many as 5400 or more ministers teaching the bible.[2]

    [1] Anti-Discrimination & Human Rights | (ombudsman.gov.pg)

    [2] >

    Overwhelmingly, the country information does not support that the applicants face a real chance of significant harm arising societal or official discrimination towards Jehovah’s Witnesses or that support the applicants’ general contention that they will face significant barriers to employment or to access protection of the authorities or that he will be denied procedural fairness. The Tribunal found the contention that the applicant will be imputed as a whistleblower based on another Jehovah’s Witness who was a whistleblower against irregular imports to have been a far-fetched claim. There no substantial reasons to accept the historical harm experiences by [an Executive 1] amounts to religious persecution in the past. There is no compelling reasons to accept that the same individual remains so fixated on the applicants and their religion as to suggest the applicants will face a real chance of serious harm for a Convention reasons, including their religion, as whistleblowers, imputed or otherwise or as litigants or for a combination of these reasons. That the first applicant was successful in litigating for damages with a settlement undermines the applicants’ general argument that there are ‘elements’ operating through PNG to undermine his current and ongoing litigation and his far-fetched and exaggerated claims of being a target by police and governing institutions that would seriously or significantly harm the applicants, including with the use of snipers or at road blocks or at any other interaction with the authorities, should they return to PNG in the reasonably foreseeable future. Neither will they be denied sufficient protection based on their religion or based of these other related Convention claims advanced in application for review, should they return to PNG.

13. Having found the applicants’ dispositive claims to be generally weak, unconvincing and embellished, the Tribunal does not accept any of the applicants have a real chance of serious harm based on their religion, on any past or ongoing litigation associated with the applicants and the first applicant being a whistleblower, imputed or otherwise, or for a combination of these Convention reasons, should they be returned to PNG in the foreseeable future.

14. Having considered the applicants claims, both individually and cumulatively, the Tribunal finds the applicants do not have a well-founded fear of persecution for any of the Refugees Convention or any other reason arising from these claims, in returning to their country of nationality and reference. 

15. Based on the same findings of fact, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to PNG, there is a real risk of any significant harm exhaustively listed under s.36(2A).

16. Accordingly, the applicants’ dispositive claims do not satisfy s.36(2)(aa).

    Residual claims

17. The Tribunal notes that the applicants have claimed that the third applicant will have to reside in overcrowded and perilous conditions whereby his spouse and children were exposed to anti-social, even sexually abusive, behaviour, if he were to return to PNG. This was embedded in one of the pre-hearing submissions. These claims are more pertinent to the protection visa application pertaining to the third applicant’s other family members. The Tribunal notes that there is no obligation on his spouse and children of the third applicant to return to PNG with him and that their visa application is not fully determined. The Tribunal notes the third applicant did not advance these claims for himself at the hearing or after the hearing, indicating he did not have a deep or urgent personally held fear of persecution arising from such circumstances. For completeness, the Tribunal notes that under the circumstances the third applicant returns to PNG with his family, there is no requirement of them to live in overcrowded or dangerous conditions and as head of the household he is well placed to protect his family from anti-social behaviour. The Tribunal notes that the first and second applicants did not advance similar claims for themselves. Accordingly the applicants are found by the Tribunal not to have a real chance of serious harm for a reason or a real risk of serious harm arising from overcrowding and anti-social behaviour, if he were to return to Port Moresby or any other part of PNG.

18. Nonetheless. the Tribunal discerned that the applicants have a residual claim for protection, namely being separated from family members, should they be returned to their country of nationality and reference.

19. In particular, the third applicants claimed that he feared being separated from his de facto spouse and his [children], who are residing with him in [Australia]. Although it was not explicitly stated, the Tribunal acknowledges that the first and second applicants fear being separated from third applicant’s [children] as grandparents, (even thought that the first and second applicants live in a different part of Australia from their grandchildren in [named city] but are able to travel and visit).

20. The Refugees Convention - and by extension, the operation of s.36(2)(a) – is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.

21. The Tribunal is not satisfied that the applicants’ overall set of circumstances amounts to holding a well-founded fear of persecution for any Convention reason. This includes not being satisfied that the applicants have any membership of a particular social group as either parents, in the case of the first and second applicants, separated from their grandchildren or as a husband and father, in the case of the third applicant, separated from his spouse and children. There is no systematic and discriminatory conduct towards the applicants on behalf of the State or other actors in this regard. For this reason, the Tribunal finds that the applicants do not have a well-founded fear of persecution on the basis of being separated or estranged from loved ones residing in Australia, if they return to their country of nationality, as this basis does not amount to being one of the five nexus reasons outlined in the Refugees Convention.

22. In this regard, the applicants do not satisfy s.36(2)(a).

23. With regards to the Act’s complementary protection provisions, the Tribunal has considered SZRSN v MIAC [2013] FCA 751 in which the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A). The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought. Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.

24. Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.

25. Lastly, the Court in SZRSN v MIBP had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, two adult children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.

26. For the reasons given, the Tribunal is not satisfied that the applicants face a real risk of significant harm for the purpose of the complementary protection criterion as a result of being separated from family members foreseeably residing in Australia ones, as a necessary and foreseeable consequence of the applicants being removed from Australia to PNG.

    Cumulative findings

27. There are no more residual claims to consider in this application for review.

28. The Tribunal notes that the applicants have emphasised that the delegate admitted to misplacing or losing part of the recorded interview. In this de novo application for review, the applicants have had a fair opportunity to advance all the aspects of their claims. This includes prior to hearing, during the hearing and after the hearing as required by the Act.

29. Based on the applicants’ accepted circumstances and having assessed all of the applicants’ claims, both individually and cumulatively, the Tribunal finds that they do not face a real chance of serious harm, now and in the reasonably foreseeable future, for any reason. The applicants’ fears of persecution are not well-founded for any of the nexus reasons outlined in the Refugees Convention, if they are returned to Papua New Guinea, and they do not satisfy the criterion in s.36(2)(a).

30. Having assessed all of the applicants’ claims, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the Independent State of Papua New Guinea, there is a real risk of significant harm, including the applicants will suffer harm by way of being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, pursuant to s.36(2)(aa) of the Act.

31. With regards to the third applicant being a member of the same family unit as his de facto spouse and children, there is no evidence before the Tribunal that these family members have been founded to eligible for the grant of these visas by the Department under ss.36(2)(a) or (aa). Accordingly, the Tribunal finds that the third applicant cannot be eligible for the grant of the visa under s.36(2)(b) as they are non-citizens in Australia founded to be refugees and holds a protection visa of the same class. Neither can the third applicant be eligible for the grant of the visa under s.36(c) as they are non-citizen in Australia who have been found to have met the complementary protection provisions and granted the visa.

1. There is no suggestion that the first and second applicants are members of the same family unit as the third applicant’s de facto spouse and [children] for the purposes of sections 36(2)(b) and (c).

   Conclusion

2. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. For the reasons outlined above, they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

3. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Brendan Darcy
   Member