1911000 (Refugee)

[2023] AATA 1356

1911000 (Refugee) [2023] AATA 1356 (2 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sandra Tempest

CASE NUMBER:  1911000

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Wayne Pennell

DATE:2 March 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 March 2023 at 3:46pm

CATCHWORDS

REFUGEE – Protection visa – Papua New Guinea – fight over land between clans – applicant failed to attend hearing– conflicting claims – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36,65

Migration Regulations 1994, Schedule 2

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

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision was provided to the applicant on 10 April 2019.

2. The applicant who claims to be a citizen of Papua New Guinea (‘PNG’) applied for a protection visa.[2]  The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to PNG, there was a real risk he would suffer significant harm.  The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations.[5] 

   [2]The applicant’s application was received by the Department of Home Affairs on 5 July 2017.

   [3]The delegate’s refusal was made on 10 April 2019.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. At the time of lodging a review of the delegate’s decision the applicant was represented by a migration agent.[6]  Accompanying that application was a copy of the delegate’s decision.  At a subsequent time, the Tribunal wrote to the applicant’s migration agent advising that all the material relating to the applicant’s application had been considered but the Tribunal was unable to make a favourable decision on that information alone.[7]  The Tribunal invited the applicant to give oral evidence and present arguments at an in-person hearing scheduled for 2 March 2023. 

   [6]The applicant’s review application was filed with the Tribunal on 2 May 2019.  The applicant’s representative was Sandra Tempest, Tempest and Associates, Registered Migration Agent.

   [7]The Tribunal advised the applicant on 18 January 2023.

4. On 7 February 2023, the applicant’s migration agent advised the Tribunal that she had made several attempts to contact the applicant, including sending him the hearing invitation in an express post envelope to his last known and recorded address.  That envelope was returned to the agent which indicated that the applicant was not known at that address. The agent then requested the Tribunal to advise them of the contact details, such as a telephone number or email for the applicant.  Those details were subsequently provided to the agent. 

5. On 1 March 2023, the Tribunal sent a SMS text the nominated telephone number of the applicant as a reminder of the hearing scheduled for the following day.  No response was received from the applicant.

6. When the scheduled hearing commenced, the applicant did not attend the hearing at the nominated time, date and place of the hearing. 

   CRITERIA FOR A PROTECTION VISA

7. The measures for a protection visa are set out in the Act and the Migration Regulations1994 (Cth).[8] An applicant for the visa must meet one of the alternative criteria as provided in the Act.[9]  That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   [8]Migration Act1958 (Cth), s 36; Migration Regulations1994 (Cth), Regulation 2.

   [9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

8. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]

   [10]Migration Act1958 (Cth), s 36(2)(a).

9. 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 themselves of the protection of that country.[11]  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.[12]

   [11]Migration Act1958 (Cth), s 5H(1)(a).

   [12]Migration Act1958 (Cth), s 5H(1)(b).

10. The Act also provides that 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, and 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.[13] 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 the Act, which are extracted in the attachment to this decision.[14]

    [13]Migration Act 1958 (Cth), s 5J(1).

    [14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

11. If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[16] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[17]

    [15]Migration Act 1958 (Cth), s 36(2)(a).

    [16]Migration Act 1958 (Cth), s 36(2)(aa).

    [17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

12. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]

    [18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

13. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]

    [19]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

14. The applicant claims to be a citizen of PNG and he originally provided a copy of his passport to authenticate this claim.[20]  Based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal accepts the applicant’s identity and finds that PNG is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[21]

    [20]Applicant’s passport was issued in Papua New Guinea [in] 2011.

    [21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

15. The Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[22]

    [22]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

16. In accordance with Ministerial Direction No. 84 made under the Act,[23] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (‘the Department’), 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.

    [23]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE

17. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[24]

    [24]Migration Act 1958 (Cth), s 36(2).

18. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear, or that it is well-founded, or and that it is for the reason claimed.  Similarly, because the applicant claims he faces 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 the statutory elements are made out.

19. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[25]  Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[26]

    [25]Migration Act 1958 (Cth), s 5AAA.

    [26]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    APPLICANT’S BACKGROUND

20. In regard to the applicant’s background, he  was born in [a city] in PNG and is aged [age].  His application suggests that he is married with four [children]. 

21. The Tribunal is aware of the applicant’s travel records held by the Department which shows that he had travelled to Australia on two occasions prior to making his application for a protection visa.  The chronology of his travel details, along with other relevant information is:

10 February 2015	Granted a visitor visa which ceased on 15 October 2015.
[Date] February 2015	Arrived in Australia and stayed for three months.
[Date]  May 2015	Departed Australia.
[Date]  July 2015	Returned to Australia.
15 October 2015	Visitor visa granted on 10 February 2015 ceased.
3 July 2017	Lodged his application for a protection visa
5 January 2018	Granted his current a bridging visa ‘C’.
[Date]  July 2017	Departed Australia.
30 August 2017	Granted a bridging visa ‘C’ visa with a no work condition.  This visa ceased on 5 January 2018.
5 January 2018	Granted his current a bridging visa ‘C’.  No conditions to visa.

1. The chronology reveals that for a period of approximately 22 months from when the visitor visa granted to the applicant ceased on 15 October 2015 to when he was granted a bridging visa, he had remained unlawfully in Australia. 

   APPLICANT’S CLAIMS

2. In providing his reasons for why he left PNG, the applicant claimed that there was a fight over land between the Dena clan and the Mananga clans.  He claimed that he was part of the Dena clan and the fight started with the clans throwing stones at each other.  He claimed: 

   Back in 2008 there was a fight over land between two clans Denas and the Managas.  The fight started by throwing stone at each other, at that time my enemy threw a stone on my right shoulder.  The next day my enemies came to my village with firearms and burn down some of our houses including my house.  From there, we start fighting with weapons and so many people were killed on both sides and I’m sick of fighting so I took off to Australia and now seeking for protection.[27]

   [27]Applicant’s application for a protection visa lodged with the Department on 3 July 2017, page 36.  The text is as it was worded in the application.

3. The Tribunal notes that notwithstanding that he disclosed that the fight broke out between two clans, his relationship to either of the clans is vague as he does not identify if he was connected or related to either of the clans.  The Tribunal further observes that he went on to claim that if he returned to PNG:

   They will still look for me and kill me, so I won’t go back.[28]

   [28]Applicant’s application for a protection visa lodged with the Department on 3 July 2017, page 36.  The text is as it was worded in the application.

4. The applicant further claimed that he considered that he would be harmed or mistreated if he returned to PNG.  He explained:

   If I go back my enemies will definetily harm me cause many people were kiled at the time of fighting and the fighting is till on now.  Last year there was a mess kiling so I’m scared or going back to Papua New Guinea.[29]

   [29]Applicant’s application for a protection visa lodged with the Department on 3 July 2017, page 38.  The text is as it was worded in the application.

5. In explaining his reason for not moving to another part of PNG for safety or protection, the applicant outlined:

   I moved to Port Moresby and reside there for 10 months but my enemies were still aftering me so I has no other options.  So I took off for Australia.[30]

   [30]Applicant’s application for a protection visa lodged with the Department on 3 July 2017, page 37.  The text is as it was worded in the application.

6. The applicant explained that he did not consider that the PNG authorities could and would have protected him if he went back.  He said:

   We arranged piece mediation team and police to negotiate piece but our law and order is powerless.[31] 

   [31]Applicant’s application for a protection visa lodged with the Department on 3 July 2017, page 38.  The text is as it was worded in the application.

7. Attached to the applicant’s application at the time it was lodged with the Department was a newspaper article printed in The National newspaper (‘The National’) published on 18 September 2015 titled “Tribal clash leaves 12 dead”.[32]  A gun battle took place in the area of Kaip in the Anglimp-South Waghi electorate between the Dena and Mananga tribes in which twelve people, including three women, had been killed.  Three others were admitted to hospital with serious injuries. 

   [32]https: Tribal clash leaves 12 dead, The National, 18 September 2015. 

8. Although the article does not reference a date of the incident, it is reported that the “clash happened at around 4pm on Tuesday”, and a “mass burial for the 12 took place on Wednesday”, which suggests that the incident took place not long before the article was published.  Further confirmation that this incident took place on 15 September 2015 is contained in follow up articles later published by The National in March 2016 and April 2016.  Those articles are discussed in greater detail later in these reasons.  When considering the timing of that incident and the publishing of the article in September 2015, the Tribunal notes that at the time of the article being published, the applicant had already travelled to Australia and had been onshore for approximately two months.    

9. When assessing the contents of the newspaper article, the Tribunal notes that it refers to an attempt by the authorities to prevent further violence between the tribes.  Provincial police officers had earlier been sent to the area and had spent 14 days trying to maintain peace between the tribes over a 13 year old land dispute.  The police, church groups and mediators had tried to defuse the hostility, but the two tribes refused to listen, and they engaged each other in a gun battle.    

10. Subsequent to that publication, in March 2016, The National newspaper published a follow up article under the title “Jiwaka leaders want end to conflict”.  The article reported on the details of the progress of resolving the dispute between the tribes. 

    LEADERS from 10 tribes in Anglimp in Jiwaka gathered last Friday to discuss an end to a 15-year-old conflict that has claimed more than 20 lives.  The leaders from the Mananga, Roni, Nokpa, Lati, Kaulga, Mimi, Kopi, Nokpa, Kuli and Dena gathered at the Rebaimul Youth Centre in Mt Hage and contributed ideas to end the fight between the Dena and the Mananga tribes which had started over a land dispute.  Jiwaka provincial police commander Supt Joseph Tondop (pictured) headed the meeting and told leaders to come up with plans so that they can end the fight.  Catholic priest Michael Akel and Jiwaka businessman and politician Joseph Teng and Western Highlands provincial administrator Joseph Neng were present to assist the leaders with ideas.  Last September, 12 people were killed and attempts by leaders, churches and NGO groups to restore peace were unsuccessful.  Tondop assured the leaders that police would support any move to end the fight.  He said tribal fight in Jiwaka must end because he would move in by force to make arrests if the fighting continued. “What you are doing here is very important because you want to prevent loss of lives and destruction,” Tondop told the leaders.  He said proper procedures and guidelines would be outlined to get the two warring tribes to make peace.  Teng commended Tondop for taking the initiative and arranging the gathering to restore peace.  “This is a very important step you are taking now to make peace.”[33]

    [33] Jiwaka leaders want end to conflict, The National, 21 March 2016

11. About two weeks later, The National published another article under the heading of “Tribes seek support”.  The article reported that police and peace mediators gathered support from two tribes in the area to end a 15 year old conflict in which 20 people had been killed, with the last incident occurring on 15 September 2015.  The article reported:   

    TWO tribes in Anglimp-South Waghi district in Jiwaka harbouring refugees from warring tribes threw their support behind police and peace mediators to end the 15-year old conflict.  Former councillor John Kawa, of Roni tribe, and councillor Douglas Mowa, of Kopi tribe, assured Chief Supt Joseph Tondop, Fr Michael Akil and members of the peace and good order committee.  The assurance was made last Friday, during their meeting at Rabiamul that they would not support Dana and Manmgain their prolonged tribal fight.  Mowa said that Dana tribesmen sought refuge in his area for 15-years, but his people never assisted them in their fight.  He said that he would assist police and peace mediators to make peace and end the tribal clash. Mowa said that his tribe would withdraw moral support and leave the tribesmen on their own because he did not want tribal fights to continue and use his tribesmen as their shield.  Kawa said that the Manga tribesmen seeking refugees in his area must cooperate with police and peace mediators.  He said the on-and-off fight in the Kaiap area so long was unnecessarily claiming lives.  “My tribesmen and other surrounding tribes want peace and we want to see the two warring tribes to come together and make peace,” Kawa said.  Tondop said 23 people had died over the last 15 years.  He said the last killing occurred on Sept 15 last year when 10 people were shot.[34]

    [34]https: Tribes seek support, The National, 12 April 2016 .

1. Subsequently, on 14 March 2017, The National published another article under the heading of “Three dead, 14 injured in Jiwaka roadside shootout”.  That report outlined:

   THREE people died instantly, four others are in serious condition and at hospital and at least 10 are being treated at home for bullet wounds after they were attacked by armed men roadside in Jiwaka. The people attacked were travelling back home from Mt Hagen when they came across gunmen who opened fire at the PMV bus they were travelling in.  The people affected are from the Wurup-Kaip area in the Anglimp-South Waghi electorate of Jiwaka. Two young men and the driver of the bus died instantly and four others are in serious condition at the Mt Hagen Provincial Hospital.  Two mothers are among those with gun wounds.  One of the women is also admitted along with young men at the hospital.  The driver, who was the owner of the bus, died on the spot.  The incident took place at Porombel-Ramba, border of Western Highlands and Jiwaka on Friday at about 5pm.  Relatives identified the driver as David Kewa, owner of Koip Yang Bus Service, and from the Nemi tribe. The other two who died at the scene were Nakson Paul, from the Roni Putimb clan, and  Mathew Ponning, from the Maninga tribe.  Locals said the attack was related to a tribal fight that involved the Dena and Maninga tribes over a land dispute.  The fight took more than 10 years and claimed many lives.  Locals said that the people attacked were innocent and came from different tribes.  Survivor Kuri Dat, from the Roni Putimb clan, said that he had gun wounds on his right leg.  Also with gun wounds are Moses Daki (right hand) and Luke Daki (back).  “This was a surprise attack as we were not aware of it,” he said.  Dat said that the fight was between the Dena and the Maninga tribes but the Dena tribe went ahead and opened fire at the bus.[35]

   [35]https: Three dead, 14 injured in Jiwaka roadside shootout, The National, 14 March 2017.

2. Three days later, on 17 March 2017, The National published an article under the heading “Tribe leaders forgive attackers”.  This article outlined:

   LEADERS of two tribes in Jiwaka are willing to forgive and forget the armed men who killed two of their tribesmen last Friday while travelling in a bus.  The leaders of the Nemi and the Mananga tribes in the Anglimp-South Waghi electorate said 23 years of fighting with  the Dena tribe over a piece of land had taken its toll on the people, with many lives lost and properties destroyed. Councillor of the Nemi and Mananga tribes Andrew Rumba, businessman John Mur and Chief Casper Ulg have decided to forgive the people who killed David Kewa from the Nemi tribe and Mathew Ponning from the Mananga Aldeng tribe.  Nakson Paul from the Roni Putumb clan also died.  Rumba said he and leaders from Kuna, Kaip and Wurup had been encouraging the two tribes to stop fighting.  “We have talked about peace and wasted a lot of our resources and money to help in the process but they would not listen,” he said.  “My tribes in the past 23 years had been helping to bury the dead and transport the wounded ones to the hospital,” Rumba said.  “In return they attacked my people. An innocent man killed.  We will not retaliate but forgive them for what they have done.”  The late Kewa was the owner of the bus attacked by armed men while travelling from Mt Hagen to Wurup-Kaip.  Rumba, Mur and Chief Ulg have told the people to raise funds to keep Kewa’s bus running to help and financially support his widow and two children.[36]

   [36]https: The National, 17 March 2017. 

3. Having considered the country information discussed above, the Tribunal accepts that there had been ongoing conflict between the Dena and Mananga tribes as claimed by the applicant, and that the conflict had been ongoing for a number of years.  Notwithstanding that, the assessment of the available country information leads the Tribunal to a conclusion that although the conflict was volatile and gave rise to the deaths of many people, there has been a successful resolution to the conflict, and this has been confirmed within the reports made by The National. 

4. A claim made by the applicant was a reference to peace mediation being arranged between the tribes, but the authorities were powerless to mediate the tribal dispute.  When analysing the country information as discussed above, the Tribunal does not accept the applicant’s claim that the authorities were powerless in their attempts to resolve and mediate the conflict.  The Tribunal prefers the country information over the applicant’s claim and the Tribunal finds that the conflict between the tribes referred to by the applicant has been resolved as reported by The National.  The applicant’s claim is rejected.   

5. The Tribunal notes and accepts that although his claims commence by reference to the year 2008 which is seven years prior to the incident referred to in The National article he lodged with his application, the year 2008 appears to correspond with the country information which outlines that the dispute between the Mena and Mananga tribes commenced quite a number of years earlier. 

6. It is noted by the Tribunal that apart from his claim of something which took place in 2008, and the provision of The National September 2015 article he lodged with his application, the applicant provided no other information or evidence of harm, and nor did he claim that he was harmed or was involved in any tribal conflict during that intervening seven year period.  The Tribunal finds that the conflict between the tribes, which he refers to in his application, and the September 2015 article took place when he was living onshore in Australia. 

7. The applicant’s application contains a claim that he escaped the conflict and moved to Port Moresby for 10 months, but his enemies were still after him.  He said that because of this, he had no other option but to travel to Australia. 

8. The applicant’s travel records show that he was granted a visitor visa on 10 February 2015, and he arrived in Australia [number] days later.  His claim that he moved to Port Moresby 10 months before he departed to Australia suggests that he had moved to Port Moresby in or about April 2014.  This timeframe was well in advance of the tribal conflict he refers to in his application when he provided the September 2015 newspaper article.  When giving careful consideration to that evidence, the Tribunal finds that he could not have participated in the tribal conflict referred to in the newspaper article or be involved in any subsequent conflict as contained within the country information.    

9. The applicant claimed that because of the conflict between the two tribes, his move to Australia was to avoid his enemies who would have harmed him because of the tribal conflict.  The country information available to Tribunal within the DFAT report provides that an act of retaliation, or payback within PNG, 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.[37]  

   [37]The DFAT Country Information Report, Papua New Guinea, 6 September 2022, page 4.

10. The country information discussed earlier in these reasons outlined that the conflict between the Dena and Mananga tribes arose out of a land dispute.  The DFAT country information report on PNG provides that 97 per cent of land in PNG is customarily held and land disputes are a common catalyst for tribal unrest with any conflict typically escalating from territorial disputes into violence, with some incidents being ‘payback’ for previous incidents.[38]

    [38]The DFAT Country Information Report, Papua New Guinea, 6 September 2022, page 12, paragraph 2.28.

11. The Tribunal recognises that the applicant claimed that the day after he was struck by a rock, his enemies came to his village with firearms and burnt down some houses, including his.  He went on to claim that what followed was fighting between the tribes with weapons and many people were killed on both sides.  He claimed that he was sick of fighting and that is why he left PNG and is seeking protection in Australia.  Although he provided a copy of a newspaper article relating to the September 2015 conflict, he has not provided any evidence of the alleged 2008 attack on his village or provided any evidence that his house was burnt down.  In the absence of any such evidence, the Tribunal does not accept that the 2008 event took place as claimed by the applicant. 

12. Earlier in these reasons the Tribunal made a finding that the tribal conflict reported in the newspaper article he relied upon took place at a time after he was living onshore in Australia.  When carefully considering the applicant’s claims, apart from being hit with a rock in 2008, he does not suggest that he suffered any other harm in the form of payback or otherwise whilst he lived in PNG for the following seven years until 2015.   

13. The Tribunal particularly notes the evidence which shows that the applicant moved to Port Moresby before travelling to Australia.  He then stayed in Australia for three months and then returned to PNG.  He stayed in PNG for approximately two months before coming back to Australia, arriving in July 2015.   

14. The Tribunal does not accept that if he had a well-founded fear of harm in PNG that he would have returned to PNG and stayed for the period of two months.  By the fact that he returned to PNG for a period of two months, the Tribunal finds that it is implausible that given his movement back to PNG, and by him remaining there for two months, that he had any fear of being harmed in PNG. 

    Delay in lodging an application for protection

15. There has been a significant delay between the applicant’s arrival in Australia in February 2015 to when he lodged his application for a protection visa in July 2017.  That is an extraordinary length of time culminating in a period of two years and five months. 

16. The applicant has not engaged with the Tribunal in respect to the hearing of his application.  Had he engaged in that process, the Tribunal would have had the opportunity to canvass with him the issues relevant to the delay in him lodging his application, along with the inconsistencies in his claims and the relevant evidence.   

17. Any consideration by the Tribunal about the delay between the applicant’s arrival in Australia and his application for a protection visa is guided by the principle that even a three month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.[39]  When applying that principle to an assessment of his claims, and his current circumstances, the Tribunal finds the significant delay is not behaviour indicative of someone who fears for their physical safety.[40]  The Tribunal particularly notes that the applicant has provided no evidence or offered any explanation as to the extraordinary delay in making his application.

    [39]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997.

    [40] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

18. When carefully assessing the circumstances of the applicant’s delay in applying for protection in Australia, the Tribunal finds that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to PNG.  The delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

    Refugee findings

19. The applicant claims he faced serious harm and would be killed by his enemies in the form of payback arising out of tribal conflict between the Dena tribe who he is associated with, and the Mananga tribe.  He said that he moved to Port Moresby for 10 months, but his enemies were still after him, so he had no other option but to travel to Australia.  The evidence shows that he arrived in Australia in February 2015 and stayed until May 2015.  He then returned to PNG where he remained for two months before travelling back to Australia.

20. The applicant has not engaged with the Tribunal during the hearing and decision-making process of his application.  Ample opportunity has been provided to him to provide, and give evidence at the review hearing.  Apart from a newspaper article lodged with his application to the Department, he has not produced or provided any other evidence to support or validate his claims.   

21. Careful assessment has been given by the Tribunal to whether the applicant is a person in respect to whom Australia has protection obligations as defined in the Act. The Tribunal finds that his travel movements back to PNG where he stayed for two months does not support his claim or hypothesis where he said that if he returned to PNG his enemies will definitely harm him, and that he was scared of returning to PNG. The applicant’s claim that he is scared of returning to PNG and has a well-founded fear of being harm in PNG is not accepted by the Tribunal, and the Tribunal finds that because of his return to PNG where he stayed for two months, there is no evidence of, or any basis to his claim that he will suffer significant harm or there is a real chance that he would suffer serious harm if he returned to PNG.

22. In respect to his claims about the conflict between the Dena and Mananga tribes, and that he feared ‘payback’ because of that conflict, the country information shows that as of 2017, resolution was achieved to that conflict.  Although the Tribunal accepts that there is a system of ‘payback’ within PNG, because of the reasons already explained, the Tribunal does not accept that the evidence shows that he will be targeted as any form of revenge.     

23. For completeness, having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicant’s application, the Tribunal finds that there is not a real risk that the applicant would suffer serious harm if he returned to PNG because of any of the claims he made. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

    Complementary protection considerations

24. The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to PNG, there is a real risk that he will suffer significant harm.

25. Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[41] the Tribunal has considered the alternative criterion.[42] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to PNG, there is a real risk that he will suffer significant harm as it is defined in the Act.[43]

    [41]Migration Act 1958 (Cth), s 36(2)(a).

    [42]Migration Act 1958 (Cth), s 36(2)(aa).

    [43]Migration Act 1958 (Cth), s 36(2A).

26. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to PNG.  Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[44]

    [44]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

27. Having considered all the applicant’s claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if he returned to PNG now or in the reasonably foreseeable future he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will he be subjected to degrading treatment or punishment.

    Conclusion: refugee criterion

28. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

    Conclusion: complementary protection criterion

29. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, he will be exposed to a real risk of suffering significant harm.

    Overall conclusion

30. 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 section 36(2)(a) of the Act.

31. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

32. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.

    DECISION

33. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Wayne Pennell
    Senior Member

    
    

    Attachment  -  Extract from Migration Act 1958 (Cth)

    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.

    …