1907329 (Refugee)

1907329 (Refugee) [2019] AATA 5879 (3 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907329
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Michael Hawkins
DATE:3 June 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 June 2019 at 1:03pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – political opinion – support of a candidate different to the rest of tribe – 2017 National Elections – payback or revenge by former partner’s family – no harm or threats of harm following election period – extensive travel history between PNG and Australia – delay in applying for protection visa – compensation demand from former partner not ongoing – no threats from former partner’s family – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
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) VG 310
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 26 March 2019 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 1 March 2019. 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.
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 claims to be a [age] year old man from [Location 1] in [Province 1], PNG.
The applicant is separated.
The applicant arrived in Australia most recently [in] September 2018, under Passport No [number], issued [in] 2015 and expiring [in] 2020 pursuant to a [visitor] visa granted on 21 August 2017 and expiring 30 December 2018.
The applicant applied for a protection visa on 1 March 2019.
The applicant attended an interview with the delegate on 13 March 2019, and provided no additional information in support of his claims to the delegate. He provided an additional undated submission and two witness statements prior to this hearing.
The applicant has an extensive travel history between PNG and Australia. He returned regularly to PNG in order to comply with the conditions of his tourist visa.
Claims:
Summarised from written claims:
The applicant claims he is a Christian and was born in [Location 1], [Province 1], Papa New Guinea.
The applicant claims he helped his uncle in election campaigns in PNG. He claims that after the election, properties belonging to his family were destroyed by supporters of the opposition parties. The applicant claims he felt unsafe and departed PNG for Australia.
The applicant claims that after arriving in Australia, he had a physical dispute with his PNG girlfriend who is based in [City 1, Australia] and a permanent resident in Australia. The applicant claims his girlfriend originates from [City 2] in PNG. He claims that after the physical altercation, his girlfriend was hospitalised and he was convicted of [an offence].
The applicant claims his girlfriend sent some text messages to his parents demanding compensation of $[amount] (AUD) and threatening that there would be consequences if the compensation was not paid. The applicant claims that he believes his life would be in danger if he returns to PNG because it is highly likely that his girlfriend’s relatives will hunt him down.
The applicant claims that he fears bodily harm or being killed if he returns to PNG.
The applicant claims that law enforcement in PNG is not sufficient to protect people who are in his circumstances. The applicant claims that he is unable to relocate to another area of PNG because PNG is a small country and hence relocation is not a viable option. He claims that his girlfriend’s relatives can easily access all places in PNG if needed.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicant’s protection visa application forms completed and lodged on 1 March 2019 (“visa application”).
- The applicant’s identity documents being a certified copy of passport;
- The protection visa decision record (‘delegate’s decision record’) of 26 March 2019;
- Undated submission from applicant tendered prior to the hearing together with two witness statements;
- 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 Protection (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 27 May 2019. He was unaccompanied and not represented. The hearing proceeded in the English language.
The Tribunal asked the applicant whether the application forms were written and prepared by the applicant. He said they were prepared by him with the assistance of a friend. The applicant confirmed that he had signed the application forms himself.
The Tribunal considered a letter from [Mr A], a [Occupation 1] in [City 2], PNG. [Mr A] stated that he was a candidate in the 2017 National Elections and was the runner-up to the sitting Member. [Mr A] states that the applicant and his family supported him during the campaign period of the election and provided cash, pigs, cars, fuel et cetera to facilitate his campaign.
[Mr A] states that during the campaigning, especially in the Highlands region, there are tribal fights between supporters of candidates, resulting in bloodshed, homes and families are displaced and properties destroyed. He states that it is common practice in the Highlands region that a clan or tribe vote for a candidate from their own tribe or clan.
[Mr A] states that the applicant and his family supported him because they are his immediate relatives. He states that the rest of the tribe where the applicant and his family are from supported a different candidate. He explained that the applicant and his family went against their own tribal choice.
[Mr A] stated that the preferred candidate of the tribe did not win either. He stated that the tribe felt anger and grudges against the applicant and his family, resulting in the tribesmen destroying the applicant’s family’s properties, such as gardens, traditional houses and threatened their lives. [Mr A] states that as a consequence, the applicant and his family now reside in [City 2] and cannot return to their homeland in fear of their lives. He also states that the applicant is an only child and that after the election, his parents were very concerned about their only child’s safety and wellbeing.
[Mr A] states that it is highly likely that the applicant’s life will be at risk if he returns to his home [province] and suggests that he can’t even return to [City 2]. [Mr A] states that PNG is a small country and that people cannot go very far to hide. He believes that if the applicant returns to PNG, it would be a matter of time before he gets seriously hurt, or the worst case scenario, loses his life.
The Tribunal considered the letter of support from [Mr B] who is the applicant’s father.
[Mr B] confirmed that the applicant and his mother and himself supported [Mr A] during the 2017 election campaign. He also confirmed that following the election result, the other candidates’ supporters, and his tribesmen, burnt down his family’s traditional houses, destroyed their gardens and damaged several of his properties. He states that he could not defend himself because he was outnumbered and accordingly vacated their land in fear of their lives and moved to [City 2]. He states that they manoeuvre around the city with precaution.
[Mr B] states that he, his wife and the applicant travelled to [City 1] [around] December 2017 for a holiday. He states that during that holiday, the applicant met his girlfriend.
[Mr B] states that [around] November 2018, the applicant was in [City 1] residing with his girlfriend, [Ms C]. He states they got into an argument on that night and the applicant ended up beating [Ms C]. He states he was charged and sentenced to prison for [number] months, but was suspended after serving [number] days on the condition that he did not commit another offence within a period of 18 months.
[Mr B] states that whilst the applicant was in prison, he received a text from [Ms C] demanding payment of $[amount], as compensation for the injuries she sustained and mental trauma she endured as a result of the domestic violence. The text stated that the deadline for payment was January 2019 and stated that if he failed to adhere to her text messages, they would be in danger.
[Mr B] attached the text exchanges to his Statement.
[Mr B] explains that [Ms C] originally comes from the [Province 2] in PNG, from a small village called [Village 1], which he states is [number] minutes' drive away from the main city. He states that news of [Ms C]’s domestic violence has already got to the attention of her relatives in [Village 1] and that the majority of her relatives live in the city. He states that those relatives are very upset and angry with the applicant and are waiting for his return to [City 2] so they may seek revenge by physically abusing the applicant and there is a high probability they might even end his life.
[Mr B] explains that the law and order system in [City 2] and PNG as a whole is very poor. He states there are many countless instances where civilians take matters into their own hands. He states that Police more often are very slow to attend to a complaint or sometimes do not even attend to complaints at all. He states that it is common practice that when someone reports a crime, the offender or the relatives of the offender will take revenge on the informant.
The Tribunal asked the applicant when he was sent to jail. The applicant replied that he was in jail from [in] November 2018 until his release [in] February 2019.
The applicant states that it was because of his jail sentence that he was unable to renew his visa which led to him becoming an unlawful non-citizen and then being placed in detention.
The Tribunal asked the applicant when the sum of $[amount] was due to [Ms C]. He stated that the due date for payment was 31 January 2019.
The Tribunal noted that it was now the end of May 2019 and enquired as to what had happened in relation to the payment since 31 January. The applicant replied that nothing has happened. He stated there have been no more texts and there have been no phone calls.
The Tribunal enquired of the applicant as to what his fear actually was given that there has been nothing exchanged between the parties in over four months. The applicant replied that he believes he will be hunted down by [Ms C]’s family. The Tribunal confirmed with the applicant that he has received no direct threats himself and that there is no evidence of any real threat from [Ms C] or her family to himself or his family. He confirmed that was the case.
The Tribunal turned to the issue of the support that he and his family gave [Mr A] during the election campaign.
The Tribunal enquired as to whom the applicant’s family was, asking what the extent of the family was. He replied that his family includes his father and mother and his father’s brothers and sisters, his aunties and uncles.
The Tribunal enquired as to where those family members are now. The applicant replied that his mother and father are in [City 2] and that his aunts and uncles continue to live in the home village.
The Tribunal asked whether anything has happened to the aunts and uncles, who are still living in the home village. He replied that no harm has come to them as they are used to the “rough and tumble” of village life. He went on to explain that if their homes are destroyed, they simply retaliate and then rebuild their homes. He went on to further explain that he and his parents, coming from [City 2], aren’t used to that and can’t cope with it.
The Tribunal enquired after his parents. The applicant stated that his parents are still in [City 2]. He confirmed that no harm has come to them, but believes that they are constantly looking over their shoulder. He also stated that they are constantly moving. The Tribunal enquired as to how often they move. He replied that he believed they were moving every six months or so. The Tribunal asked whether they were moving at the end of lease periods on rental properties. He confirmed that they did.
The Tribunal enquired after [Mr A], noting that he still appeared to be living in [City 2]. The Tribunal noted that [Mr A] was the candidate himself yet had not been harmed.
The applicant replied that his tribe were not interested in [Mr A].
The Tribunal enquired of the applicant as to whether there had been any reconciliation within his tribe yet. He replied that he didn’t believe there had been.
The Tribunal enquired of the applicant as to when the 2017 elections took place. He replied that they took place in June and July of 2017.
The Tribunal asked the applicant when he departed PNG. He replied on 29 December 2017. The Tribunal noted that no harm had come to the applicant during the period he was in [City 2] until he left for Australia.
The Tribunal also noted that the applicant returned home every three months to renew his visa. The applicant confirmed that no harm came to him during those return visits to [City 2]. He said he generally stayed for a few days but always moved within a group.
The Tribunal noted that no harm had come to the applicant during the five month period since the election. The applicant replied that that was the case, but he was always looking over his shoulder. He stated, for example, that he didn’t go to nightclubs.
The Tribunal enquired as to why the applicant did not apply for a Protection visa upon his arrival in Australia in December 2017. He replied that he was going to, but ultimately didn’t.
The applicant stated that on 4 January 2018, he met [Ms C]. When he met [Ms C], he decided that he intended to get a Partner visa with her.
The Tribunal explained to the applicant its concerns that where there is a significant delay in applying for a Protection visa, the Tribunal may form the view that his claims aren’t genuine. It again asked why the applicant did not seek a Protection visa earlier than when he did. The applicant replied that he was concentrating on a Partner visa.
The Tribunal noted that the applicant only applied for a Protection visa when he was in detention. It expressed its concerns that it may have the appearance that he only applied for a Protection visa after he had been caught and detained. He replied that he was only in detention because of the issue with his partner, which in itself has given rise to the claim.
The Tribunal noted that it was one of his claims, but that he also had his initial political claim. The Tribunal asked the applicant which of the two claims he was more concerned about. He replied that he was more worried about his girlfriend’s family.

The Tribunal noted that the assault on his girlfriend took place [in] November 2018. It enquired why her family would still be interested in him given that it was six months ago and he has already served time in prison for it. The applicant responded that revenge is a part of the Papua New Guinean culture. He stated that they never forgive or forget. The Tribunal noted again that neither he nor his parents had actually heard from [Ms C]’s family, despite his father’s statement that he knew her family were aware of the domestic violence situation.
The Tribunal discussed the potential for relocation within PNG.
The Tribunal discussed Country Information that stated that internal relocation in PNG is generally possible as people can and do regularly migrate to big cities, either in search of economic opportunities, or to escape tribal and other violence or natural disasters.[1]
[1] Paragraphs 5.29 and 5.30 of the DFAT Report
The Tribunal asked the applicant why he couldn’t relocate within PNG. He replied that he was an only child and had no relatives anywhere else in New Guinea.
The Tribunal noted, however, that the applicant had relocated to Australia and left his family behind. He had travelled to a new country with a different culture and had managed to adapt. He replied that the girlfriend’s family will find him wherever he goes. He stated that the [Province 1] area was within reach of [City 2].
The Tribunal asked the applicant about the possibility of relocating to Lae, which is on a different island. The applicant confirmed that you would need to travel to Lae from [City 2] by aeroplane. The applicant replied that the family would still find him.
Enquiring as to whether the applicant had anything further to add, the applicant replied that even though he was going to apply for a Partner visa, that is not to say that [City 2] was safe. He said from the elections onwards, his life was in danger and it didn’t matter whether he was in [Province 1] or in [City 2]. He went on to add that now he has a conflict with his ex-girlfriend’s relatives and the danger of living in [City 2] has escalated to the peak. He states that he would have applied for a Protection visa with or without the offence he committed against his ex-girlfriend. The Protection visa would have been based on the election related tribal conflict.
The applicant also sought to clarify that his girlfriend had made no direct threat of physical harm. He noted that in one of her texts she had said, “I do not want the situation to turn ugly”. He states that that is a threat of payback. He also stated that her text “Hope he is okay because I heard Oz jails can be nasty places” was a case of her mocking him. He states that she would have found pleasure in saying that as it would be about making his parents worry.
He closed by stating that he was sorry for what he had done, that he would avoid being in trouble in the future and that he wants to work for the community.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has strong reservations about the credibility of the applicant’s claims.
The 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 nearly fourteen months as reasonable in seeking protection from the time of his first arrival in Australia. The Tribunal considered the applicant’s response that he knew about protection visas and had intended to apply for a protection visa, but after he met his girlfriend in January 2018, he decided to apply for a Partner visa. He acknowledged that he had a claim for a protection visa, but decided to pursue a partner visa. The Tribunal also noted that the applicant had departed Australia on three occasions and returned, but did not seek a protection visa on any occasion of his return to Australia. The Tribunal is of the view that this delay adds further to its view that the applicant’s claims are not genuine and that the applicant’s explanation is not a reasonable explanation as to how his claims could be genuine in these circumstances.
The Tribunal acknowledged that PNG was generally unsafe in some regions, and that it was aware of tribal unrest. It acknowledged the following country information about tribal feuds in PNG – the same country information the delegate discussed with him during his interview. It discussed a summary of the following information from the DFAT Report:
"Tensions between and within PNG's hundreds of different groups occur frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.
Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country's population. Conflicts between various groups are complicated by grievances over access to royalties, benefits, and compensation associated with resource extraction projects in the country, whether mining, gas extraction or logging. DFAT is aware of cases in recent years where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby.
Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs. In December 2014, the Internal Displacement Monitoring Centre estimated there were about 22,500 people displaced within PNG because of tribal warfare (and natural disaster). In particularly serious cases, provincial authorities may request the deployment of the Papua New Guinea Defence Force (PNGDF) and/or the Royal Papua New Guinea Constabulary (RPNGC) Mobile Squads. These forces are known for taking a blunt approach to restoring security, including through burning villages and holding village leaders for ransom until perpetrators have given themselves up.
The Inter-group Fighting Act (1977) prohibits inter-tribal fighting. Section 11(2) of the Act provides for a punishment of between three and six years' imprisonment where a person has taken part in inter-tribal fighting that has resulted in death. Section 11(3) of the Act provides for a punishment of between 20 to 30 years' imprisonment if a Court determines that an individual is a principal offender or a leader of a fight that results in death. While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they will be subjected to 'payback' violence if they testify."[2]
[2] 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.[3] Enga Province, in PNG's highlands, is often considered to be a crime hotspot of violence.[4]
[3] Country Reports on Human Rights Practices 2015 - Papua New Guinea, US Department of State 2016, 13 April 2015, Section 1.d
[4] "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'."[5]
[5] 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.[6] 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.[7] In addition, Freedom House stated that the RPNGC are "largely ineffective in curbing mob violence, tribal warfare, and other crimes."[8]
[6] "Papua New Guinea 2016 Crime & Safety Report", Overseas Security Advisory Council, 11 July 2016, p.9,
[7] Country Reports on Human Rights Practices 2015 — Papua New Guinea", US Department of State, 13 April 2016, Section 1.d,
[8] Ibid
The Tribunal has considered the applicant’s claims relating to his support of [Mr A] as a candidate in the 2017 elections in PNG. The Tribunal accepts that the applicant and his family supported [Mr A] during that election and that they did so contrary to the preferences of the rest of their tribe. The Tribunal accepts that the applicant resides in [City 2] with his parents and that they visited his home village in the Highlands to assist with the campaign.
The Tribunal accepts the Country Information transcribed above but is of the view that it is not relevant to the applicant. As discussed in the hearing, the applicant does not actually reside in the Highlands. He resides in [City 2] and only visited the Highlands, albeit his original home village, during the election campaign. Thereafter, he returned to his home in [City 2].
Again, the Tribunal acknowledges the Country Information and that DFAT is aware of cases where tribes from the Highlands have carried on tribal violence in other parts of the country, including in [City 2]. However, that has simply not been the case in this instance. The applicant’s tribe have not followed him to Moresby and nor have they made any threats against him in [City 2]. The elections took place between June and July of 2017, yet the applicant did not leave [City 2] until [December] 2017, at least five months later. On his own admission, the applicant suffered no harm and no threats were made to him during that time. He claims to have been looking over his shoulder and that he couldn’t go to places such as nightclubs, but in the absence of threats being made to him, his behaviour in not attending nightclubs out of fear can only be speculative.
The Tribunal further notes that the applicant has returned to PNG on at least three occasions, staying there for a number of days each time. Again, during such visits, the applicant suffered no harm or threats of harm.
Furthermore, on each occasion that he returned to Australia, he did not seek to claim protection or lodge an application for a Protection visa.
The Tribunal noted that the applicant’s parents still reside in [City 2] and have continued to do so since the outcome of the elections in 2017. The applicant stated that they live their lives looking over their shoulders and are constantly moving house. The applicant’s father, in his witness statement, said that he and his wife live with precaution. They have not suffered harm, nor received threats of harm from their tribe. It is also noted that the applicant agreed that his parents move usually at the expiration of a lease of rental premises.
The Tribunal is satisfied that the applicant does not have a fear of suffering serious harm in [City 2]. Consequently, the Tribunal is not satisfied that the real chance of persecution relates to all areas of PNG.
The Tribunal has also considered the circumstances of the applicant and his former partner, [Ms C].
The Tribunal accepts that the former partner was physically assaulted by the applicant and that she has requested compensation in the order of $[amount] AUD from the applicant’s parents.
The Tribunal has no reason to question the authenticity of the copies of the text messages provided as evidence.
The applicant’s evidence has been consistent as to the due date for payment of the demand for compensation, being 31 January 2019.
However, the Tribunal is particularly cognisant of the fact that the applicant and his parents have not heard from the former partner, [Ms C], since 31 January 2019. As he stated in his evidence, the applicant and his father have not received any further texts or any telephone calls.
The Tribunal accepts the applicant’s contention that the words “I do not want the situation to turn ugly” is an implied threat. However, that message was sent prior to 31 January 2019 and subsequent texts were received from her that contained no such threats or implications.
The Tribunal is satisfied that the applicant’s former partner has formed the view that her demands for compensation are futile and that her demands are either unable to be met or will not be met. The Tribunal does not accept that the compensation dispute or demand is ongoing.
The applicant’s father stated in his statement that he believes that the former partner’s family are aware of the assault upon [Ms C] and are awaiting the applicant’s return to PNG. However, the applicant has stated that he has received no such threat, indeed has received no communication from the family at all. Furthermore, the applicant’s parents have not received any communication from her family at all either. The statement of the applicant’s father in the circumstances can only be considered to be speculative.
Whilst the Tribunal again acknowledges Country Information in relation to the concept of “payback”, the absence of any communication at all from the former partner, the former partner’s family or anyone else in relation to the applicant’s assault of his former partner would suggest that there is no real risk of the applicant suffering significant harm.
For the sake of completeness, the Tribunal has also considered the issue of relocation. The Tribunal discussed the concept of relocation with the applicant during the hearing. Whilst acknowledging that [City 2] is on the same island as the Highlands, and is proximate to where the family of the applicant’s former partner reside, the Tribunal did discuss the relative remoteness of the city of Lae which requires access by aeroplane or boat and which might be considered a viable option should the applicant have any other concerns about his personal security.
The Tribunal acknowledges that the applicant is an only son and that his only family is in [City 2] or in the Highlands, but it does note that the applicant travelled to Australia and was prepared to make a new living for himself in a foreign country some significant distance away from his only family. Accordingly, the Tribunal does not accept that it would be unreasonable for the applicant to relocate to a location remote from his family.
The Tribunal confirmed with the applicant that his fear of his tribe was the only reason he came to Australia, and that, and the fear of his former partner’s family were the only reasons he claims he can’t leave Australia and that these 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 s.5H of the 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 his support for a candidate in the 2017 election (who was not supported by his tribe), from opposition tribes or from the family of his former partner on account of his assault of her, 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 left Papua New Guinea because he feared for his life as a result his support of a candidate (not supported by his tribe) in the 2017 election, from opposition tribes. Further, the Tribunal does not accept that the applicant fears that he will suffer significant harm from his former partner or her family by reason of his assault of her.
The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation or employment in PNG if he was required to return as his family still lives in [City 2].
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.
…

[2019] AATA 5879

3 June 2019

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction