1803691 (Refugee)

1803691 (Refugee) [2018] AATA 2524 (22 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803691
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Michael Hawkins
DATE:22 May 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 May 2018 at 7:37am

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Race – Tribal violence – Land dispute – Physical assault – Effective protection – Lengthy surveillance by opposition tribe members – Delay in applying for protection – Credibility issues – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(!), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Papua New Guinea (“PNG”), applied for the visa on 22 December 2017. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant’s protection visa application form is very short of detail. Some parts of the form have been left uncompleted and some questions have not been answered, including his date of birth.
The applicant claims to be [an age] year old man from [a named] Tribe in the Enga Region, PNG.
The applicant is of the Christian faith, is of Papua New Guinean ethnicity, and speaks English, Enga and Pidgin.
The applicant is married, though his forms do not disclose whether he continues to be married.
The applicant provided his work history. He worked for [three businesses including Business 1 and Business 2] consistently from [1984] to [2006].
The applicant arrived in Australia on 13 December 2007, under Passport [Number], issued [in] 2007 and expiring [in] 2012 pursuant to a [temporary] visa granted on 30 November 2007 and expiring 13 January 2008.
The applicant’s visa expired on 13 January 2008 and the applicant remained in Australia thereafter unlawfully.
On 12 December 2017 the applicant presented himself to the department and was detained by the Department. He participated in a compliance client interview.
The applicant applied for a protection visa on 22 December 2017.
On 12 January 2018 the applicant’s application for a bridging visa (Class WE) was refused.
The applicant attended an interview with the delegate on 25 January 2018, and provided additional information in support of his claims to the delegate. He has provided no additional information before this hearing.
Claims:
Summarised from written claims:
The applicant claims that he belongs to [Tribe 1] which resides in [named] district of Enga Province. His tribesmen were involved in a protracted land dispute with the neighbouring tribe [Tribe 2] (which was more populous). In 1982 physical fights over the land claims erupted. The applicant's tribe lost 10 men, their opponents lost 6. The [Tribe 2] tribe outnumbered [Tribe 1] and eventually seized their lands, property and raped their girls. The applicant claims he fled to Port Moresby in 1984 and has resided in that city ever since.
The applicant claims that he found a job as [an Occupation 1] and learned [Trade 1]. From 1987 on, he worked for [Business 1] as [a specified role]. This news that he had advanced into a well-paid position reached the rival tribe; the rumours started circulating that the applicant was supporting the fight by supplying his own tribe with guns and bullets. The applicant claims the rival tribe dispatched a few young males to monitor the applicant's movements and actions and kill him if they had a chance. In 1992 the applicant resigned from his job at [Business 1] and got a position as a [different role] at [Business 2].
The applicant claims that at that time he was attacked by the men from the rival tribe when he was returning from work. He was treated at [a] Hospital for three months until he recovered and departed for Australia. He was attacked with machetes and while he was trying to protect himself, he received deep cuts [specified injuries]. He was knocked down unconscious and, while he was lying on the ground, was pelted with stones and beaten with sticks and a bush knife. The applicant claims the assailants believed he was dead and left but he was rescued and delivered to a hospital.
The applicant claims that the fight between the two tribes ended in 2008. However men continue to die in suspicious circumstances — some drown in the river, some others are found dead in car parks. The applicant fears to once more become a target of a tribal attack if he returns to PNG. He has lived in Australia for the last 11 years without causing any trouble to anybody, respecting the country laws, and is a peaceful person.
The applicant claims that the PNG police cannot provide effective state protection in tribal areas because of remoteness and lack of resources. Police are corrupt and often act on behalf of the highest bidder. The government has a very poor record of murder investigations which emboldens potential perpetrators of violence. Therefore, he cannot rely on state protection.
Summarised from evidence provided to delegate:
The applicant claims he got married in PNG in 1989 or 1999 and has [an age]-year old son from this marriage. His wife remained in PNG; they separated by mutual agreement and now she lives with another man. He has not been in contact with her for the last five years.
The applicant claims he also had [specified siblings] in PNG. He used to maintain contact with one of his brothers but after this brother [died] in 2015, he is no longer in contact with his family.
He reiterated claims raised in writing: that he fled to Port Moresby to escape tribal violence, that a rival tribe suspected him supplying his village with guns and ammunition, that he was attacked and nearly killed. He said he usually was under protection of hired guards but the attackers stalked him and intercepted him on the way to his home after he [reached a venue]. It was a [specified day] and on that day a [specified event] was taking place. The guards were [participating in the event] and did not turn up to pick him up from the [venue] as expected.
The applicant claims the police were alerted by his relatives and they apprehended [number] men who attacked him but, since he could not talk for two weeks because of his injuries ([specified]), they released the culprits. The applicant suspects that police were bribed by his attackers. He decided to leave PNG and go to Australia but he spent at least another year after the attack accumulating funds and preparing for departure. For that purpose, he [had a business]. He kept residing in the same house.
The applicant claims that even though the applicant can be now considered an aged person by PNG standards, he still can be targeted by rival tribes. The enemies of his tribe make no distinction between young and old. The tribal warfare continues in his native province. Some of the members of the enemy tribe also live in Port Moresby. They will be able to identify the applicant because they went to the same school and lived in the same area before the tribal warfare broke out.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicant’s protection visa application forms completed and signed on 18 December 2017, lodged on 22 December 2017 (“visa application”.
- The applicant’s identity documents being a certified copy of passport and birth certificate;
- Compliance Client Interview Record dated 12 December 2017;
- The protection visa decision record (‘delegate’s decision record’) of 8 February 2018;
- The review application form which did include a copy of the delegate’s decision record;
- Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Papua New Guinea, published on 10 February 2017.
Country of reference / receiving country
The applicant claims to be a PNG national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Hearing:
The applicant attended the hearing on 2 May 2018. He was unaccompanied and not represented. The hearing was assisted by an interpreter in the Pidgin (PNG) and English languages.
The Tribunal asked the applicant whether the application forms were written and prepared by the applicant. He said they were prepared by a friend with assistance from someone from [an agency]. The applicant confirmed that he had signed the application forms himself.
The Tribunal noted to the applicant that the signed application form was very short of detail and that many sections had not been answered. The Tribunal said to the applicant that it would seek to clarify some of the applicant’s background information.
The Tribunal noted that the applicant claimed to have handed himself in voluntarily. At first the applicant explained that he was in [a town] staying with a mate and that at 1am, he decided to call the police and hand himself in. Asked again, he stated that it was because he had been unlawful for eleven years and he wanted to do the right thing. The Tribunal persisted and asked him why it was, after over ten years of being “underground”, and at 1am in the morning, that he decided it was time to do the right thing. The Tribunal asked was he involved in a fight with his mate or neighbours or friends. He said he wasn’t. Asked again, he said that he received a phone call and was told that a lot of friends in [the town] were being rounded up and taken into detention. After hearing that, he decided to call the police himself and give himself up.
The Tribunal asked the applicant when he was married, noting the claim that it was either 1989 or 1999. He said it was 1999. He was asked if was still married. He said he was. The Tribunal asked if he was separated. He said that he had told his wife to find another bloke as he wasn’t coming back to PNG. The applicant agreed that he had one son who was probably now [age range] years old. He said he had not had contact with his wife or son for six years.
The Tribunal noted that the application form was silent as to his education. He said he finished [level] in his village.
The Tribunal read to the applicant his claims as summarised in paragraphs 25 – 34.
In response to the claim in paragraph 26, the applicant added that the members of the other tribe came down to Moresby in 1990 or 1992. The Tribunal noted that he moved to [Business 2] in 1992 and asked if it was then that he was assaulted. He said it was. The Tribunal queried whether that was accurate, as he didn’t come to Australia until 2007. The applicant said the assault took place in 2005 and he was still working at [Business 2].
In response to the claim in paragraph 27, the applicant said the other tribe members came at him with bush knives.
In response to the claim in paragraph 32, the applicant stated that they were not hired guards looking after him, but that it was his family who guarded him. The [event] was on and his family did not turn up at the [venue] to meet him.
In response to the claim in paragraph 33, the applicant added that the men who assaulted him were charged with attempted murder. The Tribunal noted the claim that the applicant suspected the police were bribed. He was asked whether he knew they were bribed, or was it just his suspicion. He said he believed they were bribed as the police do accept bribes in PNG. But he has no evidence.
Apart from the above comments and additions, the applicant confirmed that the claims read to him above were accurate and complete.
The Tribunal asked the applicant about the origins of the land dispute in his village. The applicant stated that a neighbouring clan wanted his tribe’s land. The Tribunal asked why. He said the other tribe believed the land belonged to them, as his own tribe had claimed it from them 50 years earlier.
He said that warfare broke out in 1982.
In 1984 the applicant decided to move to Port Moresby. The Tribunal clarified that he was about [age] years of age at that time. He agreed. The Tribunal asked about the rest of his family. The applicant said that by 1984 when he moved, both of his parents were deceased. He said that his [number] brothers remained in the village until they moved to Moresby in about 1990. His [number] sisters remained in the village and still live there. He said he used to pay for them to come down to Moresby to visit him.

The Tribunal asked the applicant why it was he moved in 1984 when he did. He said that an older cousin of his had come to visit the village from Moresby and the applicant went back to Moresby with him when he left. He decided he didn’t want to be involved in the fighting.
The Tribunal clarified that he hadn’t at any time been involved in any fighting and hadn’t been hurt. The applicant confirmed that he never went to fight.
The applicant said that in about 1990 or 1992, rumours started that he was doing well [in Trade 1] and was sending money back to the village. As a result, the other tribe sent members to Moresby to monitor him. The Tribunal asked if it was true that people had been sent to watch him since 1990 or 1992. He said it was and that at the same time, he asked his brothers to move to Moresby to look after him.
The Tribunal confirmed that he was never assaulted until 2005. The Tribunal suggested to the applicant that it was somewhat implausible that a tribe would send members to Moresby to watch him for up to 15 years before making a hit on him. It queried whether he thought it made sense that people would watch him for 15 years with an instruction to kill him if they had a chance.
The applicant explained that in 1995 or 1997 family members from both tribes moved to Moresby – family members who were seeking refuge from the fighting. The Tribunal confirmed that these were non-fighting members of each tribe. He said that was correct and they came in 2002 or 2003. The Tribunal asked the applicant to clarify whether they came to Moresby in 1995 or 2002. He said it was 1995.
The Tribunal confirmed with the applicant that he was happily living his life [in Trade 1] in Moresby, he was married and had family members living with him, up until the time of the assault in 2005. There had been no attacks on him before then, despite members of the other tribe watching him and having an instruction to kill him if they got the chance. The applicant agreed that was correct and that he was paying to look after all of his family.
The Tribunal asked the applicant about the incident in 2005. He said it was the [day of the specified event]. When he [reached the usual venue], no one was there to meet him. He was attacked by [number] men. He knew them, as he had lived with them before.
The Tribunal asked whether these were men of the tribe who had been watching him for between 7 or 15 years. He said they were. He said he used to mix up his [travel routines] each night to be unpredictable. He also said that these men had flown into Moresby the night before [for the event] and intended to fly out again after the [event], but were caught by the police at the airport.
He said that his family weren’t at the [usual venue]. When he [reached the venue], he would have to walk up a track [in a specified location]. He said that sometimes groups would hang around [that venue], and mentioned groups of raskols.
The Tribunal asked the applicant who he meant by “family” as being there to meet him. He said it was to be his [brothers], his wife and their dog. But they weren’t there.
The applicant then stated that as he walked up the track, [number] men jumped out from bushes and blocked his way forward and backwards. He said that they had bush and pocket knives. He said he saw their faces and he knew them. The applicant said he shouted out his own name, stated these guys were going to kill him, but no one came to his aid.
The Tribunal asked if the men said anything to him. He stated that they said nothing. They just assaulted him. They [inflicted injuries] with knives. He said his family found him about twenty minutes later. His uncle took him to hospital. He said he couldn’t talk for two weeks. He said he was in hospital for two or three months.
The Tribunal asked the applicant, given that nothing was said by the attackers at all, how he believed this assault was connected to the dispute in his village and not just a robbery? The Tribunal noted that it was after dark, there were a lot of people about as they were going to [the event], there may have been a lot of alcohol consumed in the city, he may have looked like he was a man of means, why is it not possible that he was unfortunately the subject of a random robbery? The Tribunal expressed its views that if there was a connection between the tribal tensions, then wouldn’t it be plausible that someone, one of the attackers, would have at least said something about that. The applicant shook his head and told the Tribunal an account about his nephew.
The applicant said that his brother’s son killed a tribesman in the village sometime between 1987 and 1992. Then the opposition tribe killed his brother’s [son]. He said that someone was paid to kill his [nephew]. The applicant said that he returned to the village for the funeral. He said a day after the funeral he was [at a public location], when he overheard someone say that they knew how the boy was killed and that they knew it was the opposition tribe.
The Tribunal noted this sequence of events, but asked how there was a connection between these events and the assault on him in 2005? The applicant responded that it showed they were still fighting.
The Tribunal discussed country information with the applicant about tribal feuds in PNG – the same country information the delegate discussed with him during his interview. It discussed a summary of the following information from the DFAT Report:
"Tensions between and within PNG's hundreds of different groups occur frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.
Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country's population. Conflicts between various groups are complicated by grievances over access to royalties, benefits, and compensation associated with resource extraction projects in the country, whether mining, gas extraction or logging. DFAT is aware of cases in recent years where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby.
Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs. In December 2014, the Internal Displacement Monitoring Centre estimated there were about 22,500 people displaced within PNG because of tribal warfare (and natural disaster). In particularly serious cases, provincial authorities may request the deployment of the Papua New Guinea Defence Force (PNGDF) and/or the Royal Papua New Guinea Constabulary (RPNGC) Mobile Squads. These forces are known for taking a blunt approach to restoring security, including through burning villages and holding village leaders for ransom until perpetrators have given themselves up.
The Inter-group Fighting Act (1977) prohibits inter-tribal fighting. Section 11(2) of the Act provides for a punishment of between three and six years' imprisonment where a person has taken part in inter-tribal fighting that has resulted in death. Section 11(3) of the Act provides for a punishment of between 20 to 30 years' imprisonment if a Court determines that an individual is a principal offender or a leader of a fight that results in death. While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they will be subjected to 'payback' violence if they testify."[1]
[1] DFAT Country Information Report PNG", Department of Foreign Affairs and Trade (DFAT), 10 February 2017
In its 2015 Country Report on Human Rights Practices for Papua New Guinea, the US Department of State noted that ‘[s]ocietal violence, particularly among tribes, was commonplace' in that country.[2] Enga Province, in PNG's highlands, is often considered to be a crime hotspot of violence.[3]
[2] Country Reports on Human Rights Practices 2015 - Papua New Guinea, US Department of State 2016, 13 April 2015, Section 1.d
[3] "Call for Australian police officers to help bolster law and order in Papua New Guinea", Australian Broadcasting Corporation (ABC) (News), 10 January 2018
DFAT also noted that:
"’Payback' is an act of retaliation that is usually carried out when one group has been harmed by another. In many cases, the perpetrator pays financial or other compensation to the victim or their family... The practice of payback can lead to impunity from mainstream court processes. Many payback cases are not reported, and witnesses are often reluctant to testify out of fear of retaliation from within the group. Traditional compensation via payback is often preferred because it produces immediate benefits and prevents a cycle of escalating 'tit-for-tats'."[4]
[4] DFAT Country Information Report PNG", Department of Foreign Affairs and Trade (DFA 7), 10 February 2017
In regards to state protection, Papua New Guinea has one of the lowest police-to-population ratios in the world.[5] The US Department of State reported that "in many cases police lacked sufficient personnel or resources to prevent attacks or respond effectively" to societal violence during 2015.[6] In addition, Freedom House stated that the RPNGC are "largely ineffective in curbing mob violence, tribal warfare, and other crimes."[7]
[5] "Papua New Guinea 2016 Crime & Safety Report", Overseas Security Advisory Council, 11 July 2016, p.9,
[6] Country Reports on Human Rights Practices 2015 — Papua New Guinea", US Department of State, 13 April 2016, Section 1.d,
[7] Ibid
The Tribunal also noted the recent statement by the Enga Province Police Commander[8] that the area now is peaceful. The local police received commitments from tribal groups to end their fighting and agreements were signed to keep the peace, while police are also clamping down on alcohol access and gun smuggling.
[8] PNG's Enga now peaceful says a police commander", Radio New Zealand International, 01 December 2017
The Tribunal noted that the applicant had told the delegate that fighting had stopped in 2008. It referenced country information referred to above that stated that the area now is peaceful. Did this not mean that tensions had cooled or settled in PNG now (and had since 2008) and that it was no longer unsafe for him in PNG? The applicant replied that it is now peaceful and that weapons have been put aside, but there is still revenge for him. He stated that he will be killed whether he is young or old.
The Tribunal asked why it is that only the applicant is the subject of revenge.
The applicant then told the Tribunal about events that preceded the 1982 conflict. The applicant said his father had [specified animals] and bred them. He said his father wanted him to marry but the applicant didn’t want him to marry. He said the fighting started across the river in 1982. As a consequence, some other clansmen came to live with the applicant’s family. The applicant’s father offered some [animals] to the other tribe to buy back some of the land for the people living with them – land they has been dispossessed of. The father gave the [animals] to one clan, but as it turned out, he gave them to the wrong clan. That other clan got nothing. So the fighting between the clans continued. The applicant said that all of the fighting was the fault of his father giving [animals] to the wrong clan, and that is why he, the applicant, will be blamed.
The Tribunal asked why the applicant was only mentioning these events now. The Tribunal noted it was not referenced in his application form, had not been mentioned during the compliance interview or to the delegate. The applicant replied that the person completed the form didn’t speak Pidgin, and that during the two interviews he wasn’t thinking clearly. The Tribunal asked why this had not been mentioned earlier in this hearing, especially after the Tribunal had read his claims back to him and asked if there was anything else. The applicant said he was sorry.
The Tribunal expressed that this response concerned it and may cause it to form an adverse view as to the genuineness of the applicant’s claims.
The Tribunal then asked the applicant about a response he had given during his compliance interview – that he had said he was assaulted by the police in PNG. The applicant replied by stating that he did not say that. He maintained that he was assaulted by the enemies.
The Tribunal restated the concerns it had with the evidence provided by the applicant.
The Tribunal said that assuming it was prepared to accept that the assault on the applicant actually took place in 2005, it maintained its concern about the reason for the assault upon the applicant and its connection with the tensions between tribes in his village. The applicant had left the village in 1984 and had lived in Moresby since then. He had led a peaceful and successful life in Moresby until that assault in 2005. The fact that the applicant claimed members of the other tribe had been sent to Moresby 15 years, or even 7 years, depending on the evidence the Tribunal accepts, to monitor and watch the applicant, and kill him if they had the chance, was so implausible as to be fanciful. The Tribunal had queried why it wasn’t more likely that the applicant had been the victim of a random robbery at night. The Tribunal was also concerned about the evidence as to the father’s involvement in the tribe tensions – why was he raising this evidence now for the first time, and what relevance was it some thirty-six years later when it had never been raised previously – no threats had been made to the applicant in relation to it.
The Tribunal was concerned that the assault took place in about July 2005, the applicant was in hospital for say two or three months, until September 2005, but the applicant didn’t leave Moresby until December 2007. The applicant said he stayed to pray and to look after his [business]. The Tribunal asked whether that was the reaction of someone who was fearing for his life or fearing serious harm from opposition tribe members. The Tribunal asked the applicant why he didn’t go back to his job at [Business 2] where he had been since 1992. He said he didn’t like his job at [Business 2]. He said he was looking after all of his family and that they didn’t look after him when he needed it. The Tribunal asked why he came to Australia of all places. He said he obtained passage to Australia through someone he knew from Melbourne. He paid him to take him to Australia. The man came to Moresby and took him back to Australia. The Tribunal asked whether he went to Australia because he didn’t go back to [Business 2], was now unemployed and he was unhappy with his family in PNG, and that he just wanted a new start. He said he would be killed if he went back.
The Tribunal advised the applicant that it had some concerns about the timeline for applying for the protection visa, given the fears that he had. The Tribunal noted that he arrived on 13 December 2007. After the expiry of his [temporary] visa, he was unlawful for almost ten years. The Tribunal asked the applicant why it took so long for him to make a protection visa application, noting that he made the visa application over ten years after arriving in Australia. The Tribunal explained that in light of that delay, it might form an adverse view as to the genuineness of the applicant’s claims of fear of returning to PNG.
The applicant replied that he didn’t know how to apply for a visa. The Tribunal asked him how he came to make an application after he was in detention. He said that someone in detention suggested to him that he get a protection visa.
The Tribunal asked the applicant what he would do if he had to return to PNG. He said he had no idea. The Tribunal suggested he had family there, that he had had good jobs in PNG virtually since he finished school and moved to Moresby and until he moved to Australia. He had also worked in farms in Australia and no doubt acquired skills. Could he not get a job [in Trade 1]? The applicant said he couldn’t go back. He said he liked it in Australia and hadn’t been in trouble. And reiterated that the tribe will be waiting for him.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has strong reservations about the credibility of the applicant’s claims. His inability to remember dates of some events yet have a crystal clear recollection of others concerned the Tribunal. The implausibility of some of his responses to some questions causes the Tribunal to have no confidence in the integrity of the applicant’s claims. Add to this the implausible explanation as to the opposition tribe sending members to Moresby to watch him and to kill him if they had the chance, and that they would watch and wait for fifteen years, and his willingness to ignore Australia’s immigration laws by remaining unlawful for ten years, the Tribunal has formed the view that the applicant’s claims must be reviewed with the utmost scrutiny.
The Tribunal noted the process for the making of the application, and specifically noted that he arrived on 13 December 2007. After the expiry of his [temporary] visa, he was unlawful for almost ten years.

The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal does not accept the applicant’s explanation for the delay of ten years in seeking protection. The Tribunal considered the applicant’s response that he didn’t know how to apply for a visa, but does not accept it. The applicant remained unlawful for over ten years during which time he had ample opportunity to take advice or see an agent, even anonymously, but did not do so until he was in detention. The Tribunal is of the view that this delay adds further to its view that the applicant’s claims must be reviewed with the utmost scrutiny.
The Tribunal accepts that the applicant’s village was subject to a land dispute from about 1982. The applicant’s account of the history of the tensions was consistent and credible. It also accords with country information available to the Tribunal.
The Tribunal does not accept that the applicant fled to Port Moresby in 1984. The Tribunal does accept that both of his parents were deceased by 1984, which the applicant had not been involved in any fighting up to the time he left and had not suffered any harm. The Tribunal accepts that the applicant went to Moresby in the company of an older cousin who had visited the village and offered to take the [age] year old applicant back with him, but this did not constitute “fleeing”.
The Tribunal accepts that the applicant obtained employment in Moresby and worked consistently there until he left Moresby. He worked as [an Occupation 1] and [in Trade 1], and after 2005, he kept a [business].
The Tribunal does not accept that from 1987 or 1992 the rival tribe in his village dispatched a few males to Moresby to monitor the applicant’s movements and to kill him if they had the chance. The applicant had difficulty remembering the dates the various members and relatives came to Moresby, having at least three attempts to settle upon a date. The Tribunal had discussed with the applicant the plausibility of the rival tribe sending members to Moresby and waiting up to 15 years for the chance to kill him, which he claimed they attempted in 2005. The applicant attempted to explain that families of both tribes sent members to Moresby in either 1995/1997 or 2002/3, both sides seeking refuge from fighting. But these were members of both tribes getting away from fighting, not looking to fight on in Moresby. And in any event, the applicant finally stated that the men who assaulted him had flown in the day before the assault [and] intended to fly back the next day. The applicant did not explain how he knew that. Instead he said that he could not make any statement for about two weeks because [of his specific injuries]. The Tribunal finds that the applicant’s explanations as to how he was watched and monitored and had a death threat over him, whilst inconsistent in many respects, are also so implausible as to be fanciful. The applicant had also stated that he had lived in Moresby very happily until the assault in 2005. The Tribunal formed the view that the applicant seemed to be making parts of his evidence up as he went along.
The Tribunal has had some difficulty reconciling the events that took place on the night of the [specified event] in 2005. The Tribunal does not accept the claim as to who inflicted the injuries upon him. The Tribunal has found his claim that he had been watched for 15 years to be implausible. The Tribunal finds that the applicant’s claim that his attackers flew in the day before and intended to leave the following day and as to how he knew this to be without explanation and without foundation.
The inconsistencies between his written claims as to hired guards not protecting him and his evidence in the hearing that it was his family who protected him gives the Tribunal reason to pause. The absence of any evidence in the form of medical or hospital records, the applicant’s inability to pin down exactly how long he was in hospital, other than “two to three” months is further cause for concern, as was his statement to the compliance interview that it was the police who assaulted him and his subsequent denial that he said that. Notwithstanding this, the Tribunal has given the applicant the very considerable benefit of the doubt in accepting that he was the victim of assault on the [day] of the [event] in 2005. However, as previously found, the Tribunal does not accept that the perpetrators of that assault had any connection with the rival tribe or the land dispute that was playing out in his village. The Tribunal finds that the assault on him that night was by random or opportunistic men bent on robbery. For the reasons provided above, the Tribunal does not accept that the applicant knew his attackers.
Given that the applicant remained in Moresby for more than two years after that attack, and the fact that he remained living in the same house, further supports the Tribunal’s reasoning that he did not know his attackers and that he knew it was unrelated to anything that was happening in his village.
The applicant left his tribe and village more than thirty years ago. He has not been targeted in any way by rival tribes since that time. The Tribunal accepts country information that there have been tensions in the Enga Province but also accepts country information that hostilities have largely ceased since 2008. It also notes the commentary from the Enga Province Police Commander that the area is now peaceful and that the police are focussing on access to alcohol and weapons. This is consistent with the applicant’s own evidence that there is peace in the village now. The Tribunal does not accept that the applicant has any fear of serious harm or death as a consequence of the land dispute in his village or from opposition tribes.
The applicant lived in Moresby from 1984 until 2007. Apart from an attack upon him in 2005 which the Tribunal has found bore no connection with the land dispute, his village or opposition tribes, he established himself, bought himself a house, lived there peacefully, with many members of his family, had a child and maintained strong employment with increased responsibilities until after 2005 when he said he didn’t like his job at [Business 2] anymore. At that time, he has appeared to become less enamoured with his family to the extent that he no longer has contact with them.
The applicant offered an account of events that he claims contributed to the ongoing fighting in his village, involving his father having paid a settlement of [animals] to the wrong rival tribe. It is as a consequence of this that the applicant believes he will be singled out and murdered. The Tribunal did note that the tensions had already commenced in 1982, that the applicant had previously stated in evidence that the tensions began because the opposition tribe (not tribes) had sought to reclaim land his own tribe had claimed fifty years before. In addition to noting these inconsistencies, the Tribunal does not accept this explanation as plausible for all of the reasons previously stated – that he had not been involved in fighting in his village before he left for Moresby, he lived for 30 years in Moresby without incident, he was attacked, but as found, that attack bore no connection with the land dispute, village or opposition tribes, remained in Moresby in his own house for over two years after the attack, and then took ten years to apply for protection after arriving in Australia.
The Tribunal confirmed with the applicant that this was the only reason he came to Australia and were the only claims he had. This being the case, the Tribunal does not accept that he has a well-founded fear of persecution as required by the definition of a refugee in section 5H of the Migration Act.
The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to PNG.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of the land dispute in his village or from opposition tribes or any other reason if he returns to PNG now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to PNG. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
Having regard to the Tribunal’s findings of fact above the Tribunal does not accept that the applicant fled from Papua New Guinea because he feared for his life as a result of a land dispute or because of a dispute in his village or with opposition tribes.
As the Tribunal has already accepted that the applicant lived in Moresby from 1984 until 2007. Apart from an attack upon him in 2005 which the Tribunal has found bore no connection with the land dispute, his village or opposition tribes, he established himself, bought himself a house, lived there peacefully, with many members of his family, had a child and maintained strong employment with increased responsibilities until after 2005 when he said he didn’t like his job at [Business 2] anymore. The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation or employment in PNG if he was required to return.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to PNG now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to PNG now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins
Member

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

[2018] AATA 2524

22 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction