1912057 (Refugee) - [2023] AATA 2884

1912057 (Refugee) [2023] AATA 2884 (8 May 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912057
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE OF DECISION:  8 May 2023
DATE CORRIGENDUM
SIGNED:11 September 2023
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:
1.In Paragraph 14 dot-point 1, “my enemies came to my village” should be “his enemies came to his village” to bring it in-line with syntax of other dot-points in this paragraph as this was not a quoted statement by the applicant.
2.In Paragraph 31, “he explained that many Dena tribesmen and women and come and stayed with [Tribe 1]” should be “he explained that many Dena tribesmen and women had come and stayed with [Tribe 1]”
3.In Paragraph 67, “the applicant has a right to enter and reside in a country other than Sierra Leone” should be “the applicant has a right to enter and reside in a country other than PNG”

David James
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912057
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:8 May 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 May 2023 at 1:26pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – inter-tribal conflict – fear of harm by warring tribe members – delay in applying for protection – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310 of 1997
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
SZRQA v MIBP [2013] FCA 962
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (Department) on 30 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Papua New Guinea (PNG), applied for the visa on 4 July 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 15 May 2019. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 4 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB (2013) 210 FCR 505.
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, 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 issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to PNG he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Claims
The applicant, when applying for the visa, outlined his claims for protection (as summarised) as being that:
·Back in 2008 there was a fight over land between the Dena and Mananga clans. The fight started by throwing stones and fighting. The next day my enemies came to my village with their guns and destroyed houses, gardens and many people were killed on both sides.
·As he was sick of the fighting he took off to Australia and is now seeking protection.
·He moved to Port Moresby and resided there for 8 months but as his enemies were still after him, he had no option but to take off for Australia.
·He cannot return to PNG as his enemies will definitely harm him as many people were killed at the time of the fighting which is still ongoing now.
·He cannot be protected by the police as the PNG law and order is powerless.
The applicant provided to the Department several photos depicting a gravesite, a man with a rifle and a man with a bow and arrow together with a newspaper article dated 18 September 2015 and headed ‘Tribal clash leaves 12 dead’. The newspaper article reports that twelve people including three women are dead following a gun battle between two tribes in Jiwaka. The warring tribes are identified in the article as the Dena and Mananga tribes. It is further reported that these deaths bring the total number of people killed in this dispute to eighteen. The article also reported that:
Joseph Tep from the neighbouring Kopi tribe said police, church groups and peace mediators had done their best to stop the hostility but the two tribes refused to listen.
Department interview
The applicant was interviewed by the Department on 18 April 2019. During this interview the applicant explained that he was from the nearby [Tribe 1] clan (as to the conflict between the Dena and Mananga clans) and that some of the people involved in the tribal fighting from the Dena clan had fled to his village. He stated that one of these people had raped his sister and as a result of his clan’s retaliation for the rape he and his brother had been targeted.
Delegate’s decision
The delegate’s decision of 30 April 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that there had been ongoing conflict between the Dena and Mananga tribes dating back many years but there was no information before the delegate to indicate that [Tribe 1] had been involved in the conflict. Additionally, the delegate noted that the applicant in his application and interview had not claimed to have been harmed in PNG. Due to the delegate’s finding of a lack of credibility on the part of the applicant the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 18 April 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Thursday 4 May 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Country information
The Tribunal has taken into account the DFAT Country Information Report Papua New Guinea, 6 September 2022, as relevant, including the information under the heading of ‘Inter- Group Violence’ at 2.27 to 2.32 of the report where it is reported at 2.27 to 2.28 and 2.31 to 2.32 that:
Tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.
Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced.
Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there.
DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG.
The Australian Institute of International Affairs in their 14 March 2022 article titled ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’ reported in part that:
Tribal fighting remains ubiquitous in the Highland communities of PNG. As the pattern of violence worsens, the role of groups like the ICRC only becomes more essential.
Tribal fights are brutal. The aim is simple – to destroy the enemy, mentally and physically. Fights generally take place in or around remote villages without access to medical assistance or law enforcement. By taking over the enemy’s land, the occupying party is better positioned during future peace and compensation negotiations. Unfortunately, the civilians who do not participate in the fights are the ones who bear the brunt of the violence. Many are wounded or killed during these intense battles. The Highlands’ limited access to healthcare only adds to the anguish. Regrettably, at times sexual violence occurs during these fights. On top of immediate needs, the impact of violence remains even after the fighting has stopped — fleeing villagers are often displaced for months or even years…
Traditional limit in fights
Just like the Geneva Conventions, Highland communities have their own rules about what is permitted during a fight. The most consistent rule is the concept of neutrality — participants should not attack neutral people, places, buildings, or objects.
From a traditional perspective, there is broad agreement that killing ‘innocent’ people would lead to death or defeat in battle, either by incurring a generation of bad luck or becoming a target of the deceased’s spirit. Unfortunately, like in many situations of violence, in the heat of the fight these tacit rules are not always strictly followed, and communities have limited means of enforcing them.
A rule of similar importance is the principle that fighting can only take place on the lands of the clans involved in the fight. The ICRC has observed neutral clans marking their boundaries to prevent becoming involved. Rules and traditions of tribal fighting are primarily passed from father to son, or at clan meetings. However, many older community members feel that younger generations no longer respect these teachings.
Women are generally excluded from the tribe’s combat decisions. While this is not always the case, they are often expected to take small children and key possessions to the safety of relatives, or to hide until the fight is over.[1]
[1] ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’, Andrew Kobylinski, Australian Institute of International Affairs, 14 March 2022, Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea — AIIA - Australian Institute of International Affairs
The National (a PNG newspaper) in their article of 17 March 2017, titled ‘Tribe leaders forgive attackers’ reported on the Mananga and Dena tribal disputes stating in part that:
Leaders of two tribes in Jiwaka are willing to forgive and forget the armed men who killed two of their tribesman last Friday while traveling in a bus
The leaders of the Nemi and Mananga tribes in Anglimp-South Waghi electorate said 23 years of fighting with the Dean tribe over a piece of land had taken its toll on the people, with many lives lost and properties destroyed…[2]
[2] ‘Tribe leaders forgive attackers’, Elias Lari, National, 17 March 2017,
Review hearing – 4 May 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English and Pidgin (PNG) languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria explained that he understood the criteria.
Given the applicant appeared unrepresented at the hearing the Tribunal provided an outline of the refugee and complementary criterion to the applicant who acknowledged that he understood the criteria. The applicant then in discussions with the Tribunal acknowledged that his claim was not one of persecution but rather complimentary protection.
The applicant told the Tribunal that he had completed his visa application with the assistance of his older brother, [Brother A] who had been living in Australia. He stated that his brother had helped him with his application after he had become aware of the process as to an application for protection.
Under questioning he informed the Tribunal that all his replies to the questions in the visa application were truthful.
He explained that the photos and the newspaper article (described above at paragraph 15) that he had included with his application showed and reported that tribesman of the Dena and Mananga tribes had been fighting near his tribal village. He explained that he was from [Tribe 1] and that the photo of the body being removed from a grave depicted his uncle’s body being taken out of the grave and examined by the authorities as part of investigations into this gun battle between the warring Dena and Mananga tribes. He explained he was there at his tribal village when the battle occurred but soon after he had left his village for Port Moresby.
The applicant’s evidence was that these two tribes had been fighting on and off since around 2000 and this incident near his village occurred in around 2015 or 2016. He explained that members of the Dena tribe had come to [Tribe 1] to stay with them when they were attacked by the Mananga tribe. Two of his uncles had fought with the Dena tribe members as one of their sisters was married to a Dena tribesman. He explained that both of these two uncles and their mother had been shot and killed during the attack upon the Dena tribespeople by the Mananga tribe at [location], Mount Hagen which was an area next to where [Tribe 1] had their village. Under further questioning he explained this area was part of an area of Mount Hagen known as Jiwaka.

When asked for further details of this incident the applicant stated that he had been there when the Mananga tribe had killed a woman (his uncles’ mother) and the first of the brothers (one of his uncles) and that this had happened around 2015 or 2016.
When asked what he saw he replied that they were fighting with guns and that his uncle was shooting at them, and they were shooting at him. He said [number] people had died that [day].
In reply to questioning as to why this attack involved members of [Tribe 1] who were not in dispute with Dena and/or the Managa Tribes, he explained that many Dena tribesmen and women and come and stayed with [Tribe 1] but that the Mananga tribe had come to fight them and kill them. He explained that the Mananga were trying to kill Dena members, but they were not killing [Tribe 1] members.
Under further questioning the applicant explained that the Mananga tribe fought the Dena tribe and only [Tribe 1] members that fought with the Dena tribe were targeted by the Mananga during the attack.
The applicant stated that he did not fight with the Dena tribe and had gone into his house after the fighting started. He explained that the Mananga won the fight and then stayed on at his village. When questioned whether he had been harmed or threatened by any of the Mananga tribe he agreed that they (the Mananga) had no problem with him and he and his immediate family were not harmed in any way. However, he said that the Mananga had killed two of his brothers (fellow [Tribe 1] members who had fought with the Dena).
When questioned as to whether he had helped any of the Dena tribe he said that he had not helped any of them and that he had been thinking of his life, so he had run away.
When again questioned as to the attack and his recollections of same, he stated that he had heard they had shot him (an uncle) rather than he had seen the shooting which had been his earlier evidence. He further explained that he was told that they took (his uncle) to the hospital where he died. He said that he stayed for a week after his uncle’s death and then told his wife and children that they could stay at the village and that they might get killed but that he was going away. As they (his family) were not all in agreement about going or staying he told his wife to take their children and to go back to her place, [Village 1] which was about 10-15 km away in the Mount Hagen area and that he would go to Port Moresby. Under further questioning he explained that his wife was from [another] tribe and that their region was [Village 1].
He said he then stayed with [Tribe 1] in their village for about a week during which he was not threatened or harmed by the Mananga tribe who had remained at his village. He said that ‘no one came and fought me’.
Under questioning as to his wife and children he told the Tribunal that at the time of the trouble they had gone to his wife’s village and remained there for about four years and then when things slowed down a bit, they had returned to his place at the [Tribe 1] village. He said that his children (daughter [age] years, son [age] years and second daughter [age] years of age) now reside in his house at the [Tribe 1] village where his younger [brother] and his family keep an eye on them and assist them when needed. He explained that his wife had since got re-married and had moved away. He also in reply to questions from the Tribunal said that his wife and their children had not had any trouble with either the Dena and/or Mananga tribe during the attack or since and that they had not been threatened and/or harmed in any way since the attack at his village in 2015 or 2016.
The applicant told the Tribunal that after the attack he had stayed a week before he travelled by plane from Mount Hagen to Port Moresby where he stayed for about 6 months until he found a way to come to Australia. He said that it was not safe for him in Port Moresby as the law and order was not strong there and he feared that the Mananga tribe might come and kill him there.
When questioned as to his fears of the Mananga tribe seeming not to be plausible given he had stayed at his village for a week after the attack during which time he had not been threatened and/or harmed. Further it was highlighted that he had likewise not been approached, threatened and/or harmed by any Mananga tribe members while in Port Moresby. The applicant replied that Mananga members had been seen by him in Port Moresby but as he had hid from them they never approached him.
The applicant then told the Tribunal that after arriving in Australia on a tourist visa, he had gone to [Town 1] where he obtained work on a Vietnamese farm. Under questioning he explained that he had heard stories of PNG people staying and working at [Town 1] and as his older brother was already staying and working at [Town 1], so he had followed him there to find accommodation and work.
Under further questioning the applicant said he had come to Australia not for work but because the fights between the Dena and Mananga tribes were ongoing and still affecting [Tribe 1]. Again, the applicant under questioning conceded that he had never been threatened and/or harmed in any way by members of either the Dena or Mananga tribes.
When asked for more detail as to his arrival and subsequent employment at [Town 1], the applicant explained that he had been met at the airport in Brisbane by a brother (friend) [Mr B]. [Mr B] was from [Tribe 1], and he took him to his house for a night where he had met up with his older brother [Brother A]. Then the following day he had been taken to the Vietnamese farm at [Town 2] where he worked for his accommodation.
The applicant told the Tribunal that after working at the farm at [Town 2] he worked on farms at [Town 1] and then for [Employer 1] for about two years, after which he had resigned. He stated he was now living at [location] and looking for a new job.
The Tribunal, in accordance with the procedure provided for by s 424AA of the Act raised a number of statements that the applicant had made in his application of 4 July 2017 and his interview with the department on 18 April 2019 as being inconsistent with some aspects of his oral evidence that he had provided to the Tribunal during the hearing. After providing the applicant with the opportunity to consider these matters and to have further time to respond, the applicant provided the following responses to the matters raised as outlined below:
·The Tribunal highlighted to the applicant that it had been his evidence at the hearing that he had feared harm from the Mananga tribe after some members of his [Tribe 1] had given sanctuary to and later fought with the Dena tribe against the Mananga tribe in the attack at his village in 2015 or 2016. Further that after a week from the fighting he had left his wife and children who moved to his wife’s village whilst he travelled to Port Moresby. However, in his interview with the Department he had said that some of the Dena tribe that came to his village had raped his sister and as a result of his tribe’s ([Tribe 1]) retaliation for this rape the applicant and his brother had been targeted by the Dena tribe and he had moved to his wife’s village.
The applicant after being offered time to consider this issue chose to reply immediately to the Tribunal and stated that he had come to Australia seven years ago and therefore why should he go back as he was frightened to do so because he believed people will poison him and cut out his liver. He further stated that although he could go back to his village, he should stay here in Australia so he can get a permanent visa and then bring one of his children here and as he has worked here and paid tax here (Australia) he should stay here now. When asked whether he wanted a permanent visa so he could remain in Australia for work and to bring his children here in the future and not because of any fears of harm he replied to the Tribunal by saying; ‘yes’.
·The Tribunal then drew to the applicant’s attention that it had been his oral evidence at the hearing that he had stayed in Port Moresby for 6 months after leaving his village before he travelled to Australia. However, in his visa application he had indicated he had spent 8 months in Port Moresby before he travelled to Australia while at his interview with the Department, he had stated he stayed in Port Moresby for 6 to 8 weeks.
The applicant in reply to the Tribunal stated that someone had recorded these times wrongly and did not provide any further explanation as to these discrepancies.
·The Tribunal also highlighted to the applicant that he had indicated at the hearing that his older brother had assisted him with the completion of his visa application whilst he had told the Department in his interview that he had filled out his application with a group of other people from PNG.
The applicant in reply said that he and other people who attended the Immigration Department were all given application forms and they all took them home and filled them and that is when his brother had helped him.
·The Tribunal then put to the applicant that it had been his oral evidence that when he had arrived in Brisbane, he had been met by a person from his village with whom he stayed with for a night during which he met up with his older brother [Brother A] and then had travelled to a farm at [Town 2] for work the next day. However, in his interview with the Department he had said that he approached someone who looked like they were from PNG at the Brisbane airport who had suggested he go to [Town 1] for work and accommodation.
The applicant explained in reply that he had met a brother (fellow [Tribe 1] member) at the airport who told him not to give out his name as he had come on a tourist visa and that this person was sick of his name getting spread about. So he had instead said he had been met by others who told him about work at [Town 1].
In reply to further questioning from the Tribunal the applicant conceded that he had known about the possibility of work and accommodation at [Town 1] before he came to Australia. When it was then put to the applicant that he had come to Australia for work he replied that he had not come to Australia for work but because he was frightened. The Tribunal then asked why the applicant had waited 12 months before making his application for protection after arriving in Australia to which the applicant’s reply was that people had not told him there was an Immigration office and that he could make such an application.
·The Tribunal also raised with the applicant that he had told the Department as had earlier been raised that his sister had been raped by Dena tribesman during the attack at his village but in evidence at the hearing he had not mentioned this rape.
The applicant told the Tribunal in reply that it’s true his sister had been raped by some of the Dena tribesmen, but he had never told the Department about her rape, and it had been his older brother [Brother A] who had made that allegation to the Department in his interview and not the applicant.
As to the circumstances of his sister’s rape he said that they all came and threatened his village with guns, and it was not just her but other woman were also raped, but that there had never been any retaliation against the rapists.
Under questioning he also agreed that he and his brother were never targeted by any of the warring tribes for any retaliation arising from the rape of [Tribe 1] members.
In a final submission the applicant told the Tribunal that he had stayed here in Australia for 7 years and was still working, paying rent, paying government tax and putting money in the bank for his children so he is not ready to go back to PNG. He said that he has come here and is here now and does not want to go back, He further stated that if the government cancels his visa he will not go back and as he knows the place (Australia), he will overstay. When questioned as to whether he understood that such an overstay would be illegal he replied that he understood that but as he has paid tax he is alright to stay.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be citizen of PNG and provided a copy of his PNG passport, based on this material the Tribunal finds that the applicant is who he says he is, and a national of PNG. PNG is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[3] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[4] This is consistent with the established proposition that it is for the applicant to make his or her own case.[5]
[3] Section 5AAA of the Act.
[4] Ibid (with effect from 14 April 2015).
[5] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[6] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[7]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[6] Fox v Percy (2003) 214 CLR 118
[7] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[8] A similar approach is taken in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[10] which provides useful guidance for this Tribunal.
[8] SZLVZ v MIAC [2008] FCA 1816 at [25].
[9] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[10] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal is satisfied on the evidence before it, that there has been ongoing disputes often involving violence between the Mount Hagen Dena and Mananga tribes of Papua New Guinea. Additionally, the Tribunal is satisfied that there was a gun battle between these two tribes in the Jiwaka area of Mount Hagen in September 2015 where twelve people were killed.
However, the Tribunal on the evidence before and for the reasons discussed below is not satisfied that the applicant was present at the gun battle between these two tribes in September 2015.
The Tribunal found the applicant’s oral evidence at the review hearing to be vague and inconsistent with his earlier version of events which he had provided to the Department in his interview of 18 April 2019 as outlined above at paragraph 44. Additionally, the Tribunal finds that the applicant’s explanations as to these inconsistencies was often implausible and at times the applicant did not actually address the inconsistency which was drawn to his attention. At the hearing the applicant identified his fear of retribution as arising from the Mananga tribe as a result of some members of his [Tribe 1] supposedly assisting them in their gun battle with the Dena tribe who had sought shelter at his tribe’s village. However, earlier in his interview with the Department the applicant had stated that some members of the Dena tribe had raped his sister and that he and his brother were later targeted by the Dena tribe members due to the retaliation against the Dena for the rape of his sister.
The Tribunal finds it implausible that the applicant would not be able to identify which of these tribes posed a risk of harm to him and why he was at risk of harm from these tribes. Further the applicant’s failure to raise the rape of his sister at the hearing and then when this inconsistency was drawn to his attention to suggest that the rape did occur but that he had not made such a claim to the Department and that the Department had reported that claim incorrectly as it had only been made by his brother is simply not credible.
Equally the applicant’s explanation as to the different versions of the time he had spent in Port Moresby could be explained by way of a suggestion that ‘someone’ had got these times wrong is not accepted by the Tribunal and again is simply not a credible explanation.
The Tribunal finds on the evidence before it that the applicant came to Australia with an intention to obtain employment as a farm worker and was not in fear of any harm or persecution. The Tribunal does not accept the applicant’s version of a chance meetings at the airport with other PNG persons resulting in him travelling to [Town 1] or [Town 2] to obtain employment. Rather the Tribunal is satisfied that through his older brother [Brother A] and/or other persons he had arranged to travel to Australia with the purpose of commencing farm work at [Town 2] at the Vietnamese farm and/or and certainly later similar work at [Town 1].
Additionally, the Tribunal notes that the applicant arrived in Australia [in] July 2016 supposedly fearing harm from the Dena tribe (later stating it was the Mananga tribe that posed a risk to him) and subsequently made his application for a protection visa on 4 July 2017, one year after arriving in Australia. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution he would not have delayed applying for a protection visa. In regard to this delay the Tribunal rejects the applicant’s explanation that he was not aware that there was an Immigration office in Australia and such an application could be made

For the reasons above the Tribunal rejects the applicant’s evidence as to his claims in their entirety and finds the applicant to be an unreliable and untruthful witness who travelled to Australia and seeks to remain in Australia for personal economic reasons only.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, and considering the cumulative effect of the inconsistencies in the applicant’s evidence and that there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims of harm meet the refugee criterion. The Tribunal having found the applicant to have been an unreliable and untruthful witness is also not satisfied that the applicant meets the complementary protection criterion as the Tribunal has rejected the evidence and claims of the applicant in their entirety for a lack of credibility. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criterion in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Sierra Leone.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
…

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Citations

1912057 (Refugee) [2023] AATA 2884

Cases Citing This Decision

Cases Cited

Statutory Material Cited

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

ABT16 v Minister for Home Affairs [2019] FCA 836