1912999 (Refugee)

1912999 (Refugee) [2023] AATA 3111 (15 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912999
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:15 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 June 2023 at 2:19pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – ongoing tribal dispute – father killed by sub-tribe member after distribution of money for construction of hospital – credibility issues – protection visa claims submitted by brother – applicant unaware of claims – new claims – fears for safety due to prevalence of violence – returnee from Australia – police in Wabag – harm and property damage from tribal members – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 424AA, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 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 29 November 2016. 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 24 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 13 June 2023 to give evidence and present arguments.
The applicant was not represented in relation to the review.
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 (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.
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 in his application as being that:
·He left PNG out of a fear for his life arising from his father being killed over the distribution of 100,000 Kina amongst his tribe.
·His father was a member of the Lankep tribe and leader of two sub-clan tribes, the Sikil and Yakal.
·When a proposed hospital was to be built on vacant land between the two sub-tribes his father received 100,000 Kina as recompense, which he then distributed among the two sub-tribe families.
·A member of the Yakal sub-tribe was not satisfied with the distribution of the money and went to the applicant’s house and there shot his father dead.
·In retaliation the applicant’s sub-tribe killed some of the young boys from the enemy’s tribe, and he and his older brother were in fear of being killed and the applicant ran away to his sister’s home in [Town 1] where he stayed for two years.
·He fears that if he returns to PNG he will being targeted and killed by the enemy tribe because of the ongoing tribal dispute caused by his father.
The applicant provided a statement under his hand and under the hand of Pastor [A] together with a photograph depicting four male persons apparently deceased and two copies of ABC News reports dated 13 April 2015 with his application.
In his unsigned statement the applicant claims in part that:
…We own some few businesses in our [village]. My (father) has [number] wives and one died and my mother left me when I’m age of [age] years.
On day our local MP wants to build a small hospital in the vacant land that was in the middle of our two tribe. Therefore he came and gave K100 to Lankep tribe. My father was a leader so he got these money and he distributed equally to each person and even to a family. One morning when we were sleeping the guy from Yakal tribe came home with a gun and killed my father in front of the house and we all wake when we heard a gun shoot. My father was laying on the door way bleeding on his chest…
The next day fight started and some of my brothers were killed and houses were burnt down and I haven’t seen all these staff in my life so I was really scared ran away after 3 days of fight. Most people were died and millions worth of property where destroyed there even aftering me and my brother [Brother A]to kill. So we will be definitely killed because our dad got the money and she shared but people said he was greedy and most of their young boys were killed and they even lost their houses worth millions of Kina so please help us leave.
Note. That’s a biggest fight in PNG in Enga Province Wabag in my tribe. The news was reported in ABC news but date was mistaken and money was given to buy land to build hospital not to stop fight.
The ABC News reports of 13 April 2016 reported that:
Under the heading of ‘PNG police on manhunt for murder suspect’ it was reported that:
Police PNG’s highlands say a dispute over payments given to rival tribes to put an end to fighting sparked violence which left four people dead and a mother and her child seriously injured…
…Enga Province deputy police commander, Epenes Nili alleges the violence happened after payments were made as part of a peace settlement.
And under the heading of ‘Papua New Guineas police search Enga province jungle for a man wanted over the deaths of four people’ it was reported:
…It is understood a dispute over payments given to rival tribes in PNG’s Enga province sparked the violence…
…that two tribes were paid 100,000 kina ($50,000) each to stop fignting near a local hospital.
While one tribe said they distributed the funds fairly, members of the other tribe believed it had not been.
“One of them got angry, and was not really satisfied with hat was paid to him, he got a weapon and went t the house of the person distributing the money,” Deputy Commander Nili said.
“When he came out of the house he shot him, at point blank, and he died instantly”.
Police said the suspect and at least six others from his tribe then fled into the night, killing three more people and kidnapping a young child, and are now in hiding in the jungle…
Department interview
The applicant was interviewed by the Department on 28 February 2019.
Delegate’s decision 21
The delegate’s decision of 14 March 2019 to refuse the protection visa was made on the information before the delegate. The delegate dismissed the applicant’s claims for protection in their entirety. 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 17 April 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 2 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 ‘Security Situation’ and the sub heading of ‘Law and order’ at 2.26 which provides that:
Violent and petty crime are common in PNG, especially in Port Moresby, Lae and other urban centres. Robbery, assault, sexual assault and gang rape, and property crimes are all relatively common. Informal settlements in and around towns and cities are particularly dangerous. 'Bush knives' (machetes) and guns are often used in assaults and robberies. Most robberies involve weapons. Women face a much greater risk of sexual assault and robbery. Women and girls are also subject to high levels of primarily family-centred gender-based violence (see ‘Women’). Police response is usually inadequate (see ‘Police’).
Also, 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.
Under the heading of ‘Police’ at 5.3 to 5.6 in which the report provides at 5.5 and 5.6 that:
The effectiveness of the RPNGC is severely limited by resource and staffing constraints. The police are routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. Sources reported that a trial in 2022 in Central Province for serious sexual offences against a child only went ahead because of NGO support in the form of petrol funding for the police and necessary accommodation provided to the complainant and her mother. One close observer of the RPNGC suggested that, while the full complement of police stood at around 5,500, only around one quarter of these were fully effective as police officers. RPNGC officers endure poor working and living conditions, including low remuneration; frequently need to assert themselves in violent environments, often without weapons or protection; have family/clan obligations to meet; and are generally poorly trained, particularly on human rights. Some police are also disinclined to act in response to some GBV, SARV or tribal fighting offences due to sympathy for the alleged perpetrator(s).
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.
Under the heading of ‘Internal Relocation’ at 5.15 and 5.16 it is reported that:
Internal relocation for vulnerable groups in PNG may be possible – people can and do regularly migrate to cities, either in search of economic opportunities or to escape tribal and other violence or natural disasters. As much as 50 per cent of Port Moresby’s population is comprised of internal migrants residing in informal settlements. Those who relocate to Port Moresby and other major cities face very high unemployment – 80-90 per cent in the formal sector in Port Moresby – and very high levels of crime, including tribal fighting.
However, some people struggle to relocate within PNG to avoid issues such as GBV or SARV. Papua New Guineans commonly rely upon family and tribal networks for support, in the absence of government services. Lack of resources and language difficulties can present problems, especially for single women, even more so for those with children. Where relocation has succeeded, it has typically been accompanied by substantial NGO support. Exacerbated by the widespread take-up of mobile phones and social media, and the presence of diaspora from other parts of PNG (most especially in Port Moresby which one source referred to as ‘Little PNG’), those who relocate are often recognised in their new home and this information will typically be communicated to their place of origin. This may present a continuing threat to those attempting to escape violence (see Tribal Violence and Women).
And under the heading of ‘Conditions for Returnees’ at 5.19 where it is reported that:
Australia facilitates approximately 10-15 assisted departures to PNG annually. Persons in this category either do not have funds or are unwilling to return to PNG. Those who have overstayed their visa in Australia may be issued a bridging visa to assist them in making arrangements to depart Australia. They may also be given a sum of money for transport costs on return to PNG (as occurs worldwide). DFAT does not have any information available on conditions faced by those who have not been granted protection and returned to PNG.
Review hearing – 13 June 2023
The Tribunal hearing was conducted at the Brisbane Registry in the Pidgen (PNG) and English languages on 13 June 2023 after having been postponed on 2 May 2023 when the applicant had appeared as scheduled for his hearing. The hearing did not proceed on that day as the booked interpreter failed to appear by video link and/or telephone before the Tribunal. Efforts to contact the booked interpreter by telephone were unsuccessful on that day. After adjourning the hearing to make enquiries as to the availability of another Pidgin interpreter, the Tribunal, when unable to engage another interpreter postponed the hearing to 13 June 2023.

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 did not have an understanding of the criteria.
Given the applicant’s response and that he was appearing unrepresented at the hearing the Tribunal provided an outline of the refugee and complementary criteria to the applicant, who acknowledged after same, that he understood the criteria.
The applicant under questioning indicated that he did not complete his Protection visa application form and did not know the claims that had been made in the application. He explained that his brother, [Brother A] had completed the form and attached the supporting media articles which the applicant was not familiar with or had knowledge of same.
When asked why he came to Australia in September 2016 the applicant explained that at the time everything was organised on his behalf by his brother. He stated that his ‘mother’ received a phone call in Port Moresby, and he was then contacted at home in Wabag in the village where he lived with his tribe, the Lankep tribe. He said he had been working [when] he got the call and as requested, he packed his bags and came to Port Moresby.
He explained that this trip to Port Moresby was the first time he had left his village. He said he travelled to Port Moresby and there stayed with a family member, a lady who was originally from his village and who he called ‘mum’. His ‘mother’s’ partner worked at the hospital, and they paid for his airfare to Australia, and he travelled to Australia with this relative, his ‘mother’, her husband and their daughter. He further explained that later after arriving in Australia his ‘mother’ and her daughter remained in Australia, but his ‘mother’s’ husband returned to PNG for work.
As to his own family he explained that his biological mother had passed away from [medical condition] when he was in grade [number]. He explained that he did not really know his father as his father had left the family when he was a young boy but did know that his father had been a businessman and had some other wives. He told the Tribunal that he has not had and does not have any relationship with his father. He also told the Tribunal under questioning that he and his brother [Brother A], who had arranged for him to travel to Australia, had the same mother and that he thought they had the same father.
Under questioning the applicant explained that he had lived in Wabag within the Lankep tribe up and until he was around [age] years of age. He said that was when he first left his village and travelled to Port Moresby and then onto Australia in 2016.
The applicant was asked as to whether his father had been shot and killed in tribal violence. His reply was ‘No’; and he explained that he had been brought up with his [sisters] and brother by his grandfather after his mother had passed away from [medical condition]. He said that his grandfather later passed away in 2015. He further explained that his [sisters] are now married and live with their respective husbands, in [Town 2] and in [Town 1].
The applicant was asked as to whether he had lived with one of his sisters in [Town 1]. The applicant replied that he had not lived with [his] sisters and their families and had not ever lived in [Town 1]. Under further questioning he explained that one of his sisters lives in [Town 1] after moving from Wabag to [Town 1] in around 2007, but that she had often visited him and his grandfather in Wabag.
When asked whether his father had been the leader of the [Town 1] tribe, the applicant said that his father had not been a tribal leader in Wabag. The applicant was also asked whether his father had been involved in the distribution of 100,000 Kina to members of the sub-tribes of the Lankep tribe for the sale of land and the construction of a hospital on tribal land. The applicant’s reply was that his father had not been involved in such matters.
The applicant was again asked if his father had been shot and killed in either 2001 or 2015 and the applicant’s reply was that his father has not been shot and killed to his knowledge.
In accordance with the procedure outlined in s 424AA of the Act the applicant was questioned about his responses to the delegate in his interview with the Department on 21 January 2019. The applicant t old the Tribunal that he had not told the truth during that interview. The applicant told the Tribunal as he had already disclosed, that his father had not been shot and killed and that he had not been taken to Port Moresby by a visiting pastor, Pastor [A] when he was [age] years old. He explained that ‘[given name]’ was his ‘mother’s’ (in Port Moresby) husband.
Under further questioning the applicant told the Tribunal that he had told the Department what his brother [Brother A] had told him to say at the interview, and that [Brother A] had completed his application form and obtained the supporting material.
In reply to the Tribunal’s question as to what danger if any he faced if he returned to PNG the applicant stated that he did not feel safe to go home because there is a lot of violence, and he was not comfortable going home because of that violence.
However, under further questioning the applicant conceded that he had not been the subject of any threats of violence or subject to any actual violence whilst he had been living in PNG. However, he stated that his home is now a violent place and people have died from taking home brew and marijuana.
The applicant agreed with the Tribunal that the violence he was speaking about was criminal violence that all of the PNG community faced in their day to day lives. He further explained that this violence affects all the surrounding areas of his village, and it has become a worse place to be because of knifings and car jackings.
When the Tribunal put to the applicant that in his [number] years or so of living at Wabag that he had never been the subject of any personal threats of and/or any actual violence he said that he had been affected by violence. He explained that there had been one occasion when he had built a house when he was about [age] years of age and it had been burnt down due to some fighting about the land within his village. He explained he was not hurt or threatened in that incident.
When asked why had not raised this incident with the department or Tribunal earlier he said that it was something personal that had happened to him, so he never shared it with anyone before.
Under further questioning he explained that neither he, his grandfather or his sisters had been attacked or threatened over the house burning or any other matter and that another relative’s grass house had also been burnt down, but that the leaders of the community had since stopped everything and there was no further danger.
The applicant further agreed that in his [years] of residing in his home village of Wabag that he and his immediate family had never been threatened or harmed or for that matter been killed.
As to why he could not return to PNG, the applicant explained that he does not feel he is able to return home, or to Port Moresby, as the crime rate is quite high and coming back from Australia, he really feels they will kill him. Under further questioning he said that he feared the ‘street monkey’s’, street boys who are in gangs and have taken over the city. He again agreed that everyone in PNG was in the same situation with the ‘street monkeys’. He stated that coming back from Australia he would look different with his attire and could be picked upon. However, he also said that he did have an uncle in Port Moresby but that his uncle is not so welcoming after his wife, the applicant’s aunty had passed away.
The applicant under further questioning conceded he could take care of himself and change his attire but as he had not sent money back to his relatives, they may now be jealous of him if he does not bring anything back for them and so they may not offer to care for him in PNG.
As to relocating within PNG the applicant told the Tribunal that he was not familiar with other parts of PNG and did not feel safe going to other places other than his home and that he also feared the police who often picked on him when he was selling [product] at the local markets. Under further questioning he said that the police make their own rules about selling produce at the markets and it can be hard to make a living. When questioned as to why he had not earlier raised his concerns about the police with the Department and/or the Tribunal he stated that he did not feel there was a need to raise this issue before with the Department.
The applicant when asked about his life in Australia told the Tribunal that after arriving in Australia in 2016, he obtained employment [at] [Workplace 1] at [Brisbane] in 2017. He stated he worked there until 2020. He said that whilst he was working the night shift at [Workplace 1], he also obtained a six-month day time [traineeship] at [Workplace 2]. In 2021 he left [Workplace 1] and obtained work [at] a farm at [location] before he travelled to Perth where he remained for two years working at a Perth abattoir. Upon his return to Queensland, he returned to his old job at [Workplace 1] for about 5 months before taking on a [job] at [Workplace 3]. He explained that he is now living on the Gold Coast where he works [at] [Workplace 4].
The applicant further explained that since arriving in Australia he had married an Australian woman but that they had since separated due to his accumulation of debts which included a [loan] for a car which he provided to his brother [Brother A]. [Brother A] had run up a large number of fines in the car which were attributable to the applicant. He explained this car had since been repossessed and he has paid out the outstanding loan and fines.
As to his brother [Brother A] the applicant told the Tribunal that they are no longer in contact but that he had heard that [Brother A] was now living in Sydney.
The Tribunal put to the applicant that he had applied for protection because his employment prospects were better in Australia and the crime level was less than that in PNG. The applicant in reply agreed with the Tribunal’s proposition agreeing that his concerns about returning to PNG were that lack of employment and the street gangs.
The applicant was then taken through the claims for protection that had been outlined in his Protection visa application, and he confirmed that those claims were false and that they had been made by his brother and did not reflect his own experiences in Wabag, PNG.
The Tribunal discussed country information (as outlined above at paragraph 22) with the applicant who indicated that he agreed with such information.
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.[1] 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.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] 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.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]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.
[4] Fox v Percy (2003) 214 CLR 118
[5] 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.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal is satisfied on the evidence before it that the applicant originates from Wabag in the Enga province of Papua New Guinea. The Tribunal also accepts that the applicant is from the Lankep tribe and lived his life at Wabag without any adverse serious incidents but for the isolated burning down of a house he was building. Additionally the Tribunal is satisfied that the first time the applicant left Wabag was when he travelled to Port Moresby and then onto Australia in 2016.
However, based on the evidence before the Tribunal including the applicant’s honest admissions that his claims contained in his Protection visa application were made by his brother [Brother A]. That [Brother A] had told the applicant what to say in his interview with the Department, and that all of his claims were untrue. The Tribunal rejects the entirety of the applicants claims made in his Protection visa application and in his interview with the Department on 21 January 2019.
However, The Tribunal acknowledges that during the hearing the applicant raised new claims, that being his fears for his safety in PNG due to the prevalence of violence and being targeted because he has returned from Australia, his fears of the police in Wabag, and his fears of harm and property damage from tribal members in Wabag.
The Tribunal has considered the provisions of s 423A of the Act and that the Tribunal is to draw an inference adverse to the credibility of new claims or new evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence, was not presented to the primary decision maker. Additionally, the Tribunal is mindful of the obligation placed upon applicants to present their case as discussed above at paragraph 55[9]. In that regard the Tribunal does not accept the applicant’s explanations as to why he had not raised these new claims earlier as being reasonable.
New Claim – Membership of a particular social group - ‘a recent arrival from Australia who will be targeted by street gangs and other criminals in PNG’
[9] Section 5AAA of the Act.
In regard to the applicant’s new claim and notwithstanding the Tribunal having drawn an adverse inference as to the credibility of this claim the Tribunal has still considered this claim. The applicant claims to fear harm from street gangs and criminals in PNG and his explanation for not earlier raising this claim was that he had not felt a need to do so.
The Tribunal does not accept the applicant’s explanation as being reasonable in all the circumstances of his matter. The applicant has maintained his false claims in his Protection visa apparently without any attempt by himself through his interactions with his former representative and the Department to make himself familiar with his claims and/or to correct these false statements and claims. The Tribunal notes that the applicant attended an interview with the Department at which he represented a version of events consistent with his claims as he had been directed to do so by his brother and he participated in that interview with the Department where his claims were discussed and made no attempt to correct his evidence and/or amend his claims but rather, he continued to advance his false claims for protection.
Notwithstanding the Tribunal does not accept the applicant’s explanation for not raising this new claim with the original decision maker as being reasonable. The Tribunal, is additionally, given the relevant country information as outlined above at paragraph 22 as to ‘Law and order’ and ‘Police’ satisfied that the risk of harm from criminal violence in PNG is a risk faced by the community at large in PNG.
Equally as to the applicant’s claims that he will be specifically targeted by street gangs and criminals due to his attire and having recently returned from Australia, the Tribunal notes the applicant’s evidence that he could modify his attire and also likely be assisted by his uncle in Port Moresby if he was to return to PNG. It seems given his positive relationship with his ‘mother’s partner who works in a hospital in Port Moresby and his relationship with his sisters in [Town 2] and [Town 1] that he would also be able to obtain assistance from his family to re-establish himself in either Port Moresby or Wabag, or elsewhere in the Enga province and/or elsewhere in PNG.
The Tribunal is also satisfied that notwithstanding the economic problems of PNG, that given the applicant’s ability to have obtained and maintained a variety of positions of employment here in Australia, where he has independently supported himself and paid off a significant motor vehicle loan, that he will be able to obtain employment and either sustain himself independently or with some assistance from his family and relatives.

Therefore, for the reasons outlined above the Tribunal is not satisfied that if the applicant was to return to PNG in the reasonably foreseeable future, that he would face a real chance of persecution involving serious harm for reasons of his membership of the particular social group being ‘a recent arrival from Australia who will be targeted by street gangs and other criminals in PNG’.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
New Claim – Tribal and/or family violence over land
During the hearing the applicant raised a further new claim that the house he had built in his village when he was in his [age range] had been burnt down as a result of a family dispute as to land. His evidence was that when he was about [age] years of age in around 2006, he had built a house and during a dispute amongst his extended family as to the land on which he built his house it was burnt down by members of his family. He told the Tribunal that at the time another grass house had also been burnt down due to this land dispute. However, the applicant explained that the community elders had intervened and there was no further destruction of property or threats of violence and/or violence arising from this land dispute.
The applicant’s evidence as to why he had not earlier raised this claim was that it was something that was personal to him and so he had never shared it before.
Notwithstanding that the Tribunal does not accept the applicant’s explanation for not raising this new claim as being reasonable. The Tribunal also notes that the applicant’s evidence was that after this incident of his house being burnt down and the intervention by community leaders that there had not been any further threats and/or violence directed at him or his immediate family, and that he had remained in his village without further incident until he later left his village some 10 years later for Port Moresby and then Australia.
Therefore, for the reasons outlined above the Tribunal is not satisfied that if the applicant was to return to PNG in the reasonably foreseeable future, that he would face a real chance of persecution involving serious harm for reasons of tribal and/or family violence over land disputes.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Fears of persecution by Police
The applicant also raised during the hearing that he feared violence from the PNG police if he was to return to PNG. The applicant’s evidence in this regard was vague and non-specific but for claiming that on one occasion when he was selling [product] at the markets near his home village the Police had picked on him. He said he feared that the police in PNG may interfere with his rights to make money as the police make their own rules about people selling things at the local markets and they can make it hard for someone to make a living. In this regard the Tribunal accepts that police corruption may be an issue throughout PNG especially in rural market settings. However, noting the applicant’s positive work history in Australia the Tribunal is satisfied that the applicant would be able to find employment other than selling [product] at the local markets now and could also seek and obtain assistance from his uncle in Port Moresby or his siters in [Town 2] and [Town 1] to assist him in re-establishing himself in PNG.
Therefore, for the reasons outlined above and given the vague nature of this claim and the lack of details provided by the applicant the Tribunal is not satisfied that if the applicant was to return to PNG in the reasonably foreseeable future, that he would face a real chance of persecution involving serious harm by the PNG police if he was to return to selling [product] or other supplies at a regional market.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Relocation
As to the issue of relocation the applicant had during the hearing stated that he was not familiar with other parts of PNG and did not feel safe going to other places. He relied upon his fear of the police which has been discussed above. Given the applicant after arriving in Australia in 2016 has been able to independently support himself financially, find and maintain accommodation, service financial debts and maintain stable employment in a new and unfamiliar country, the Tribunal is satisfied that the applicant could establish himself financially and socially in other locations in PNG other than his home village at Wabag in Enga province and/or Port Moresby.
Therefore, the Tribunal is not satisfied for the reasons outlined above that the applicant cannot relocate within PNG to avoid any supposed fears of harm that he subjectively holds.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims in their entirety and having considered all of the applicant’s claims both individually and cumulatively, and considering the cumulative effect of the false claims and explanations as to not raising his new claims earlier 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 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 meet the refugee criterion. The Tribunal having found the applicant to have been untruthful as to his claims and not having provided a reasonable explanation for not raising his new claims with the original decision maker, is also not satisfied that the applicant meets the complementary protection criterion. The Tribunal has rejected the evidence and claims of the applicant in their entirety. 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 criterions and does not satisfy the criteria 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 PNG.
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.
…

[2023] AATA 3111

15 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction