1907399 (Refugee)

1907399 (Refugee) [2023] AATA 4102 (24 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sandra Tempest
CASE NUMBER:  1907399
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Andrew McLean Williams
DATE:24 September 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 24 September 2023 at 4:26pm
CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea –wife of the Applicant is already the holder of a protection visa– fears harm from the husband of his ex-girlfriend – extra marital affair with a married woman – benefit of the doubt – a ‘real risk’ that the Applicant will suffer ‘significant harm’ if returned to PNG – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 91, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 26 March 2019 thereby refusing to grant the Applicant a protection visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant - who is a citizen of Papua New Guinea - had applied for protection on 17 March 2017. The Delegate refused to grant a protection visa on the basis of having concluded that the Applicant was not a person to whom Australia owed any protection obligations under either s.36(2)(a) or s.36(2)(aa), or under either of s.36(2)((b), or s.36(2)(c) of the Act.
The Applicant appeared before the Tribunal on 10 August 2023 for the hearing of this application for review, which was filed on 28 March 2019. The Tribunal also received oral evidence from [Mr A] and from a Ms [B], who is now married to the Applicant.
The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages. [Mr A] gave his evidence by telephone from Papua New Guinea. Unfortunately, the quality of the telephone connection to [Mr A] in PNG was so poor that his evidence was unable to be adequately received by the Tribunal. Because of that, at the conclusion of the hearing, the Applicant was afforded until 14 September 2023 to instead provide a notarized and translated statement of evidence from [Mr A], as well as any further submissions in relation to that evidence.
The Applicant was represented in relation to the review by Ms Sandra Tempest, solicitor of Tempest & Associates Pty Ltd.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and in Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
An Applicant for the visa must meet one of the alternative criteria in any of s.36(2)(a), 36(2)(aa), 36(2)(b), or 36(2)(c) of the Act. That is, the Applicant must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds; or they are a member of the same family unit as such a person, and that person holds a protection visa of the same class.
After the Tribunal hearing, and as part of the further submissions provided to the Tribunal on 14 September 2023, the Tribunal was informed that the wife of the Applicant Ms [B] is already the holder of a protection visa. This was new information, not previously disclosed to the Tribunal, and at least potentially raised the spectre of the Applicant becoming entitled to a protection visa under either of s.36(2)(b) or s.36(2)(c). To put the question beyond doubt, the Tribunal therefore wrote to Tempest and Associates on 18 September 2023, now requesting for the provision of further evidence, in the form of proof of the marriage between the Applicant and Ms [B]; as well as evidence of the fact of Ms [B] already being the holder of a protection visa in Australia (‘requested additional evidence’).
The requested additional evidence was provided to the Tribunal on 19 September 2023. This revealed Ms [B] (who is also a citizen of PNG) was granted a permanent protection visa (Class XA, Subclass 866) on 21 December 2011, and that she and the Applicant married on [date] November 2021.
On the basis of this information, the Tribunal determines that the Applicant is ineligible for a protection visa under either of s.36(2)(b) or s.36(2)(c), because of the effect of s.91WB of the Act.
Section 91WB requires that the Applicant - as a ‘family Applicant’ – to have applied for the protection visa before the family visa holder is granted the protection visa. In this instance Ms [B] is the putative ‘family visa holder’, and she had had applied for her protection visa on 19 July 2011, which was then granted on 21 December 2011. [The applicant] then applied for a protection visa in the same category on 17 March 2017, being a date prior to his marriage to Ms [B] as well as a date that was a number of years after Ms [B] having been granted her protection visa. Accordingly, s.91WB precludes any entitlement for a protection visa in the case of the Applicant under either of s.36(2)(b), or s.36(2)(c). That does not however prevent the Applicant from having his protection claims considered by the Tribunal under s.36(2)(a) and s.36(2)(aa) of the Act.
Refugee Criteria
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 qualifies as a ‘refugee’.
A person qualifies as 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 themselves of the protection of that country: s.5H(1)(a).
In the case of a person without a nationality, they may also qualify as 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) of the Act, 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 to those circumstances in which a person will be taken not to have such a fear are then also set out, in ss.5J(2)-(6) and ss.5K-LA, which are similarly extracted, in the attachment to this decision.
Complimentary protection criteria
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless still 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 also extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (‘DHA’), and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the [Applicant] is owed protection by Australia under either of s.36(2)(a), or s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the matter should now be remitted for reconsideration.
The Applicant’s Protection Claims
The Applicant was born in PNG on [date], and is now aged [age] years.
The Applicant first came to Australia on a FA-600 (‘Visitor’) visa on [date] February 2017 and applied for a protection visa whilst on-shore in Australia, on 17 March 2017.
In summary, the Applicant’s protection claims are as follows:
·In or about 2015, the Applicant was working in Port Moresby as a [Occupation 1] and commenced to have an affair with an older woman named [Ms D]. The Applicant claims that he was initially informed by [Ms D] that she was divorced, and only much later did the Applicant discover that [Ms D] was not in fact divorced, but rather was still married.
·The Applicant travelled overseas from PNG with [Ms D] on several occasions (mostly to Australia), fully paid for, by her.
·[Ms D]’s husband discovered their affair, and realised that [Ms D] had expended very large sums of money on the Applicant, and he became enraged by this and has now extended a number of threats towards the Applicant that have been relayed to him in Australia by other persons, in PNG.
·On 24 December 2016, [Ms D]’s husband and a group of men associated with him went looking for the Applicant in PNG, not knowing that at that time the Applicant was already in Australia. Upon entry to the Applicant’s home in Port Moresby, and their discovery that the Applicant was in Australia, the men dragged his brother [Mr E] outside and slaughtered him with bush knives, before burning the Applicant’s home to the ground.
·As supporting evidence for these claims - when these were originally made at the time of lodging the application for a protection visa - the Applicant provided a police statement and a crime report issued by the Royal Papua New Guinea Constabulary, as well as a death certificate for his brother [Mr E]. The Applicant also provided photographs of the badly damaged house, and what appear to be the remains of a decapitated person, which the Applicant now claims to be depictions of his home in Port Moresby, and of his deceased brother [Mr E].
Identity of the Applicant
The Applicant was required to participate in a protection visa interview with officers from the Department. This was conducted on 29 January 2019.
During the protection visa interview, the Applicant made admissions that his then girlfriend [Ms D] had acquired his Papua New Guinean passport for him, and that the date of birth shown on that passport ([date]) was a bogus date. The Applicant conceded that [Ms D] - who was considerably older than Applicant, was attempting to make the Applicant look older, and thus closer in age to herself. The Applicant confirmed that [date] is not his true date of birth, and that he had never held a birth certificate bearing that date.
The Applicant was also questioned during his protection visa interview in relation to his Queensland driver licence, which similarly showed a date of birth of [date]. The Applicant admitted that he had obtained a Queensland driver licence by presenting his former PNG driver licence when making application for a Queensland driver licence, and claimed to no longer hold a PNG driver licence, because he “threw it away” upon receipt of his Queensland licence.
Later, during the protection interview the Applicant also admitted that his PNG driver licence was also a document that had been procured by [Ms D], and the Applicant further speculated that [Ms D] may have engaged in fraud in order to obtain that document, as well.
On the basis that it was suspected that both the Applicant’s Queensland driver licence and his PNG passport were likely to be bogus documents, these were seized at the protection interview by departmental officers.
Despite holding considerable reservations regarding the identity of the Applicant, the Delegate nonetheless concluded that the Applicant bore all the linguistic and cultural indicia of his being a person from Papua New Guinea, and to be a person who had demonstrated at least a sound knowledge of his home village, and of Port Moresby.
On the basis of Papua New Guinea school records, as well as further efforts by the Applicant to clarify his identity after the matter of the bogus identity documents had been identified, the Delegate eventually accepted the identity of the Applicant as [applicant name], born on [date], and as a citizen of Papua New Guinea.
The Tribunal is similarly satisfied as to the identity of the Applicant, such that Papua New Guinea becomes the receiving country during this protection eligibility assessment.
The Decision now under Review
During the protection visa interview the Applicant had stated that he had never been married and that he was in a romantic relationship with an older woman by the name of [Ms D], whom he had met in Port Moresby in around 2016.
During the protection interview the Applicant informed that he had first understood that [Ms D] was divorced, yet later came to realise that [Ms D] was not in fact divorced, nor even separated yet that her husband frequently went away for extended periods for work, and when he did do that [Ms D] would come and stay with him.
It was then put to the Applicant during the protection visa interview that in his FA-600 visa application he had claimed to be married to [Ms D], and that in her own visitor visa application [Ms D] had similarly claimed to be married to the Applicant. The Applicant did not deny that the FA60 visa applications may have said that, yet claimed that all of the paperwork had been completed by [Ms D].
It was also put to the Applicant that the police statement lodged with his protection visa application had stated that [Ms D] had been divorced four years prior to the incident in which his brother had been killed in Port Moresby; and had also stated that she and the Applicant were now married. Once again, the Applicant denied that he was married to [Ms D] and stated that he had last had contact with [Ms D] on 23 December 2016, and that he was no longer aware where she resides.
The Applicant was also questioned regarding his extensive travel between PNG and Australia, and his regularly residing at a specified address, at [address] which is also the address listed for [Ms D]’s children. At this juncture during the protection interview the Applicant claimed that he has never met any of [Ms D]’s children, at which point it was put to the Applicant that [Ms D]’s adult son – a Mr [F] - had also applied for a protection visa at about the same time as had the Applicant, raising very similar grounds to those now raised by the Applicant, and similarly supported by a police report and a death certificate which were highly similar to those used by the Applicant in support of his own protection visa application, thus giving rise to the suspicion that these were fabricated documents. It was further put to the Applicant during his protection visa interview that during his own protection visa interview [Mr F] had admitted that his protection claims were false claims, and that the documents provided in support of his protection claims were false documents that had been fabricated.
During the protection visa interview on 29 January 2019 the Applicant then made admissions that his family home in PNG had not been burned down, and had not been attacked by [Ms D]’s husband and by other men associated with [Ms D]’s husband, and the Applicant also admitted that the death certificate for his brother [Mr E] was a fabricated document, and although [Mr E] had died, [Mr E] had not died in the circumstances now claimed by the Applicant, and that the PNG police report in relation to the death of [Mr E] was a fabricated document organised by [Ms D] (‘the admissions’).
On the basis of the admissions, and notwithstanding a post-interview submission to the effect that the Applicant had felt “intimidated and overwhelmed” during the interview such that he had “started to say just about anything” in an effort to bring about the conclusion of the interview, the Delegate determined that [Ms D] had acquired bogus documents for the Applicant, and that [Ms D] and the Applicant had also provided false information in conjunction with their visitor visa applications, including as to their marital status; and that the factual claims made by the Applicant as the grounds for his now claiming protection, as well as the supporting documents for those claims, were not genuine. Accordingly, the Delegate determined that the Applicant was not a person to whom Australia owed any protection obligations under either the refugee criteria (s.36(2)(a)), or under the complimentary protection criteria (s.36(2)(aa)).
Protection eligibility under the Refugee criteria, s.36(2)(a):
In order to be eligible as a refugee, the Applicant must have a well-founded fear of persecution on one or more of the grounds specified in s.5J(1) of the Act; being on grounds of either race, religion, nationality, membership of a particular social group, or as the holder of a particular political opinion.
In this case the Applicant does not seek protection on any of those grounds, and instead claims to fear reprisal action at the hands of [Ms D]’s husband in consequence of his extra marital affair with her, and in consequence of [Ms D] having expended vast sums of her husband’s money on the Applicant, particularly in relation to taking the Applicant on multiple trips overseas to Australia, and on one occasion also to [a country].
For the reasons given immediately above, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has any protection obligations under s.36(2)(a).
Complimentary Protection Assessment
In support of his application for protection under the complimentary protection criteria, and in addition to a number of character references relating to the Applicant’s time in Australia (which do not go to the factual basis of the claims advanced as the grounds for the Applicant’s claims for protection), the Applicant seeks to rely upon the following evidence:
·a statement from the Applicant dated 10 March 2023
·a letter from [Mr G] (described as an ‘eye witness’) dated 30 July 2021
·a letter from [Mr A] (the Applicant’s paternal half-brother)
·a letter from [a named] District Councillor, dated 30 September 2022
·a further statutory declaration from [Mr A] dated 24 August 2023
·a clinical psychology report from [Ms H] dated 21 November 2022; and
·a further statutory declaration from the Applicant, dated 14 September 2023.
In the Applicant’s statement dated 10 March 2023, the Applicant states that during his protection visa interview on 29 January 2019 he was “shocked and lost memory” after having been confronted about the false birthdate on his passport and drivers licence, and claimed that the interview was an “emotionally intense” and “stressing confrontation experience” and, notwithstanding his having admitted to the dubious provenance of the documents submitted by him in the form of a death certificate for his brother and a police report in relation to the incident in which his brother was killed and his house was burned down, the Applicant still claimed that these were true events, and he remains fearful of an imminent danger of harm should he return to New Guinea at the hands of the husband of his ex-girlfriend, [Ms D] .

The letter of support from [Mr G] indicates that [Ms D] ’s husband [Mr I] attacked and killed the Applicant’s brother [Mr E] and destroyed the Applicant’s home in Port Moresby by burning it down. [Mr G] claims to be the Applicant’s neighbour in Port Moresby and claims also to have called both the ambulance and the police on the day when [Mr E] was killed outside the home which was burned down, and to have taken the photograph of the body of the deceased [Mr E], before later going to the [police] station to make a police report. [Mr G] also claims that the Applicant’s life is at very high risk if he returns to PNG because [Mr I] is looking for the Applicant seeking recompense of 300,000 kina allegedly expended by [Ms D] on the Applicant during their affair. Mr [G] further claims that the Applicant has been disowned by his family because they hold him responsible for the death of his brother [Mr E]. [Mr G] was not called to give evidence before the Tribunal such that the reliability of the claims made by him in his letter have not been able to be tested.
In the first un-dated letter from [Mr A], [Mr A] states that he resides [in] Port Moresby and that he is the half-brother of the Applicant and that the Applicant had come to live with him in Port Moresby in order to finish his high schooling.
After school, [Mr A] arranged for employment for the Applicant as a [Occupation 1], and it was during this time that the Applicant had met [Ms D] in Port Moresby. [Mr A] is of the belief that [Ms D] misled the Applicant and had informed the Applicant that she was separated from her husband when in fact she was having an extra-marital affair with the Applicant. [Mr A] then states that when [Ms D]’s husband [Mr I] found out about her affair with the Applicant he flew into a rage and murdered [Mr E] and burnt down the house where the Applicant had lived in Port Moresby together with his brother [Mr E]. [Mr A] states that believes that in the event that the Applicant were to return to PNG he would still be at risk of reprisal by [Mr I], because [Mr I] has argued with [Mr A] about the 300,000 kina allegedly spent by [Ms D] on the Applicant during their affair. The inference is that [Mr A] is stating that he believes that [Mr I] now expects the Applicant’s other family in PNG to repay the 300,000 kina allegedly expended by [Ms D] on the Applicant.
In the additional statutory declaration received by the Tribunal from [Mr A] after the conclusion of the Tribunal hearing (now dated 24 August 2023), [Mr A] declares that on 23 December 2016 a group of men had come and burnt down the Applicant’s house in Port Moresby, and had chased his brother [Mr E] down the road, before murdering him and leaving his body in a ditch. [Mr A] claims that he heard about these things on the grapevine such that he drove to the Applicant’s home in Port Moresby before witnessing that it had in fact been destroyed in a fire. [Mr A] says that he then went to the emergency Department of [a] Hospital and found that the body of the deceased [Mr E] was being held in the morgue. [Mr A] says that he went into the morgue and identified the deceased and bloody corpse of [Mr E], and was later told by neighbours that [Mr E] had been slaughtered by a group of men associated with [Mr I] by means of bush knives. [Mr A] further declares that in 2019 a group of men organised by [Mr I] had attacked [Mr A] and his [relatives] and had destroyed their food stall, demanding to know the whereabouts of the Applicant and further demanding the repayment of 300,000 kina claimed to have been spent by [Ms D] on the Applicant. [Mr A] further declared:
“In 2020, [Mr I] came around again [and] was attacking me personally and threatened me. He had said that I had told you to bring [the applicant] to PNG but it’s taking longer and nothing happened. I kept quiet and did not reply him and his gangs were trying to chop my head off with bush knives. Luckily my siblings were there so they drew their bush knives, and we had a big fight and the general public got involved. [Mr I] and his gangs ran to a tinted van and drove away. [Mr I] is not done with [the applicant] yet. He is going to murder [the applicant] if his returns to PNG. [The applicant] has no safe place here in PNG, he is also not accepted in our family and community”.
In the letter from councillor [name], it is indicated that [he] has known the Applicant and his family as local community members, and that the Applicant had left [the] Village in about [year] to continue his secondary schooling in Port Moresby. [He] then indicates that he is aware that the Applicant became a [Occupation 1] after completing [grade] in 2013, and that he had an affair with a married woman named [Ms D] whose husband found out about the affair, and had a plan to murder [the applicant], which was thwarted only by reason that [the applicant] was in Australia at the time when [Mr I] went to [the applicant]’s home in Port Moresby, so he instead killed [the applicant]’s brother [Mr E] and then burned the house down. [He] further states that Applicant is now persona non-gratis in his local community because local people blame the Applicant for the circumstances of [Mr E]’s death. The basis for [him] knowing all these things is not clear from his letter, and it is now assumed by the Tribunal that he was not an eyewitness to any of these events and is now merely relaying things that have been informed to him by others.
In the most recent statutory declaration by the Applicant, as declared on 14 September 2023, the Applicant again declares that the evidence given by him in relation to the death of his brother in Port Moresby is true, and that the contrary answers given by him during his protection interview on 29 January 2019 were because that interview was “..lengthy, I was struggling to comprehend the questions, the manner they were presented in, the subjects that they discussed again the manner they were discussed. I felt very distressed, frightened, and confused and even to the stage of feeling faint. The distress became overwhelming, I felt like I was being interrogated that my mind could not absorb any more information or questioning. I finally concluded that if I just replied yes to their accusations, it would all go away, and I could leave the office.” Notwithstanding his having said previously that the death certificate for his brother [Mr E] was a fabricated document the Applicant also declares that the death certificate is ‘genuine’, and that [Mr E] was killed and his body was left in a ditch by [Ms D]’s husband and his men. The Applicant also declares that his house in Port Moresby was burned to the ground by [Ms D]’s husband and his men. In relation to the false protection claims admitted by Mr [F] , the Applicant declares that he has never met [Mr F] and assumes that [Mr F] had similarly used false documents prepared by [Ms D] , also based upon a similar narrative of the circumstances giving rise to his own protection claims.
The psychology report from [Ms H] dated 21 November 2022 indicates that the Applicant “is quite depressed about his brother being murdered and anxious about the future. He has trouble sleeping and at night sometimes sees a dark figure …which he feels is his brother. [The applicant] still has a relationship with his half-brother in PNG who has told [the applicant] that he is not safe to return and that the family are still being harassed by [Ms D]’s husband. [The applicant] has said that the main source of conflict in PNG is women and land, if you get caught with someone else’s wife you will be killed, same if you take someone’s land.”
Assessment of the Applicant’s Factual Claims
In the end, there remains considerable doubt as to the provenance of the ‘official’ documents from PNG provided by the Applicant in support of his protection application.
On the one hand the Applicant has admitted during his protection visa interview that these were fabricated documents prepared by his former girlfriend [Ms D]; and highly similar documents were used by [Ms D]’s son [Mr F], as part of a separate protection claim advanced by [Mr F].
Stacked against those admissions of falsity are the Applicant’s assertions that he had made false admissions during the protection visa only due to the stress and anxiety of that interview process and his desperation to make the interview come to an end. The Applicant now maintains that his brother was murdered, and that his house was burned down in the manner described, which are supported by statements of evidence obtained from those other deponents now summarised in these reasons. In the end, it is difficult for the Tribunal to know just what exactly should now be believed.
The threshold for the ‘real risk’ element in the complimentary protection criterion in s.36(2)(aa) is essentially the same as that for the ‘real chance’ test in the refugee criterion as used in s.36(2)(a): MIAC v SZQRB (2013) 210 FCR 505. The real chance in the context of refugee assessment has been described by the High Court as ‘a substantial chance’, as distinct from a remote or far-fixed possibility; however, it may still be well below a 50% chance (Chan v MIEA (1989) 169 CLR 379). Additionally, the principles relevant to the assessment of a real risk include that if a decision-maker is unable to make a finding with sufficient confidence they may also need to pause and consider the possibility that their conclusion regarding their having no ability to be able to make a factual finding is an incorrect conclusion (‘but what if I am wrong?’).
The ‘what if I’m wrong’ test was further explained by the Full Federal Court in MIMA v Rajalingam. Justice Sackville (with whom North J agreed) held that it followed from the decisions of the High Court in both Guo and Abebe that there may be circumstances in which the decision maker must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. The Court held:
When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the Applicant’s claimed fear of persecution.[1]
[1] MIMA v Rajalingam (1999) 93 FCR 220 at 240; see also 255.
However, if a decision maker has no real doubt that its findings as to past events are correct, it is not bound to consider whether its findings might be wrong. Similarly, the ‘what if I am wrong’ approach is not engaged in circumstances where a decision maker is unable to reach a sufficient state of satisfaction on the evidence to make any factual findings, due to a lack of detail and substance in the Applicant’s claims or where the evidence before the decision-maker is insufficient or inadequate to establish the relevant facts.
The expression ‘what if I’m wrong’ should not be regarded as a separate question to be answered in each case. Further, it is not necessary for a decision maker to ask such a question in relation to each finding and conclusion it makes or reaches. Nor must findings as to whether alleged past events occurred be expressed in a manner that makes explicit the decision-maker’s degree of conviction or confidence that they are correct. Rather, it should be seen as simply one aspect of the obligation to apply correctly the principles for determining whether an Applicant has a ‘well-founded fear’ of persecution. The reasonable speculation in which the decision maker must engage may require it to take account of the possibility that past events might have occurred, even though it thinks that they probably did not.
Ultimately the Tribunal is not able to determine whether the events now claimed by the Applicant did happen or not, and the Tribunal has no independent capacity to conduct field enquiries in Papua New Guinea in order to either confirm or refute the claims now made by the Applicant regarding the death of his brother [Mr E] having arisen in circumstances where those assailants were really looking for the Applicant, instead. However, the Tribunal is aware of the nature of lawlessness and Tribal violence in PNG and is aware of the frequency in which attacks are made in that country by assailants armed with bush knives. The Tribunal accepts that the Applicant was in a relationship with an older woman named [Ms D], and is alive to the possibility that, if [Ms D] were married to another as now claimed, then the fact of her husband then discovering his wife to be in an extra marital affair with the Applicant could give rise to the possibility of violent reprisal action. On this basis the Tribunal is prepared to extend the benefit of the doubt to the Applicant and accepts that if the concerns he has expressed become manifest then there is a ‘real risk’ that the Applicant will suffer ‘significant harm’ if returned to PNG, and in circumstances where that risk relates to all parts of that country.
Accordingly, the Tribunal is now satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s.36(2)(aa) of the Migration Act.
Andrew McLean Williams
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the Applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the Applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the Applicant.
(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.
…

[2023] AATA 4102

24 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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