1916868 (Refugee)

1916868 (Refugee) [2023] AATA 1808 (17 April 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:1916868

COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE OF DECISION:  17 April 2023
DATE CORRIGENDUM
SIGNED:22 May 2023
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:
1.In Paragraph 15:
a.    “Hanged herself on” should be “Hung herself from
b.    “girlfriend’ suicide” should be “girlfriend’s suicide”
2.In Paragraph 36 “threated to kill him” should be “Threatened to kill him”
3.In Paragraph 40 “opportunity to consider these mattes” should be “opportunity to consider these matters”
4.In Paragraph 47 “the High Court and Federal Court of Australia,⁵and” should be “the High Court and Federal Court of Australia,⁵and”
5.In Paragraph 63, “"whether the applicant has a right to enter and reside in a country other than Sierra Leone." Should be “"whether 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:  1916868
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:17 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 April 2023 at 10:51am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – complementary protection – suicide of girlfriend – revenge killing – burning down homes – credibility issues – delay in applying for protection – referral for Ministerial Intervention – Australian citizen children – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 411, 417, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
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
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 on 31 May 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 30 August 2018. 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 26 June 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 April 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, 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 being that:
·He left PNG out of a fear for his life arising from his girlfriend’ suicide in which his girlfriend hanged herself on a tree outside his family’s residence because her family did not allow her to visit him or stay with him.
·He claims he has been blamed by his girlfriend’s family for her death and that they are looking for revenge and want to kill him for the death of their daughter.
·He claims he had to leave PNG to save his life.
·He claims that if he was to return to PNG his girlfriend’s family will kill him as ‘Pay Back’ even though he was not responsible for his girlfriend’s death.
The applicant later provided the department with a letter addressed to ‘Whom It May Concern’ dated 31 January 2019 and purportedly under the hand of [Leader A] of [Tribe 1] who states in part and as relevant that:
I have been at the fore front of all peace mediations between the [Tribe 1] and the neighbouring [Tribe 2] after a tragic death of a young woman from the [Tribe 2]. The body of the young woman was found hanging on a tree by a rope around her neck.
The circumstances surrounding her death is not clearer however, it has been speculated that it was related to her being dumped by her boyfriend at the time of her death. The boy is known as [the applicant’s name].
[The applicant] has since gone into hiding in fear of his own life and this has further complicated matters which is the subject of my role as Peace Mediator between the two tribes.
There has been some progress made towards Peace Mediation, however the situation is very much tense.
I have since learnt that [the applicant] is now residing in Australia. I am of the firm belief that [the applicant] is safe in Australia. I have even spoken with [him] and he has no doubt that he is safe in Australia.
Therefore, I would strongly recommend that [the applicant] stays in Australia and not to return to Papua New Guinea. I have no reservations whatsoever in recommendation as he is the person of interest in relation to the death of his late girlfriend.
Please render your utmost in support for [the applicant] to gain permanent residency in Australia.
Department interview
The applicant was interviewed by the Department on 28 February 2019.
Delegate’s decision
The delegate’s decision of 31 May 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, due to their 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 23 February 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Tuesday 23 March 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.
On 20 March 2023 the Tribunal notified the applicant that the presiding member was unable to conduct the review hearing on 23 March 2023 and informed the applicant that the review hearing had been postponed and re-scheduled to Thursday 13 April 2023 at 9:30 am at the Brisbane Registry of the Tribunal.
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.
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.
And under the heading of ‘Prevalence of Fraud’ at 5.23 where it is reported that:
Document fraud occurs frequently in PNG, particularly in relation to identity documents. It is reportedly very easy to obtain birth certificates in any name. Fraudulent supporting documents, including fake bank certificates and letters of invitation, can also be readily obtained. It is reportedly not uncommon in cases of visa non-compliance for people to re-apply under a new identity.
Review hearing – 13 April 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language. The Tribunal commenced the hearing by questioning and confirming with the applicant that he understood English and did not require or prefer the hearing to be conducted with an interpreter.
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 criterion explained that he understood the criterion.
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 criterion. The applicant then in discussions with the Tribunal acknowledged that his claim was not one of persecution but rather complimentary protection.
The applicant confirmed his claims as those that had been outlined in his application and the accompanying documents that he had forwarded to the Department (the [leader’s] letter which has been discussed above at paragraph 16).
During the hearing and in reply to questions from the Tribunal the applicant provided the following documents relating to his de-facto partner and their Australian born children:
·Australian Citizenship certificate in the name of [Ms B] (the applicant’s de-facto partner);
·Queensland Birth Certificate in the name of [Child C], born [date] to parents [Ms B] and the applicant;
·Australian Passport in the name of [Child C] (DOB [specified]); &
·Queensland Birth Certificate in the name of [Child D], born [date] to parents [Ms B] and the applicant.
The applicant’s evidence (in summary) and as relevant was that he engaged an agent in Port Moresby to organise a visitor visa for him to travel to Australia in 2016 on the pretence of coming to Brisbane to [attend an event]. After arriving in Australia in December 2016 he went to [Town 1] because he knew some other PNG people there who provided him with access to accommodation and farm work for him picking [produce] for about three months. He said that after his visitor visa expired (after 3 months) he tried to find ways to get a protection visa so that he could stay in Australia because there was danger up in PNG for him. He then went to Melbourne with his friends and picked [Product 1] at a farm for about two months and then travelled with his friends to [Town 2] where he did more farm work picking [Products 1 and 2]. He then returned to [Town 1] and continued doing farm work with his friends rotating from [Town 1] to Melbourne, then to [Town 2] and back to [Town 1]. He said that he continued to work on the farm picking circuit until he applied for his protection visa in 2018. He said that he applied for his protection visa straightaway once he understood he could make that application.
He explained that he had originally been paid in cash for his farm work and produce picking but that since 2018 he has paid tax in Australia as he was able to obtain a Tax File Number. He further informed the Tribunal that he has a girlfriend [Ms B] who is also from PNG but now an Australian citizen. He said they have two children, [Child C] born [date], now [age] years of age and [Child D] born [date], now [specified age] old. In reply to questions from the Tribunal he produced identification documents for his partner and children as outlined above at paragraph 26. He explained that he and his partner had been married in PNG in a traditional village ceremony although he did not physically attend as he stated he could not get a visa and it was also still too dangerous for him to return to PNG. However, he said if he could have got a visa, he may have attended as things were settling down in PNG and he could have checked if it was okay for him to have returned. He said that he and his partner were presently in the process of submitting a partner visa application, and later in the hearing he enquired as to whether the presiding member could accept that application and determine same during the current hearing.

As to his visitor visa he explained that he gave his name and some details to an agent in PNG who completed the visitor visa. He said in reply to the Tribunal’s questions that some of the information was truthful on the visitor visa but much of it he didn’t understand, and it was completed by the agent who he paid. He further stated that the agent got some of his information mixed up in the application.
As to his background he told the Tribunal that he was brought up in [Town 3] and completed his high school in [Village 1] which was a village in [Town 3] about an hour drive from his family home in [Village 2] Village. He explained that while he completed his high school education he lived with his uncle, [named] who he explained was his father’s sister’s son, his cousin. He resided with his ‘uncle and his ‘uncle’s’ wife and children whilst he attended high school.
He explained that his mother still resides in the family home after his father had passed away in around 2001. He said that [one sibling] who is about [age] or [age] years of age had been studying but due to the cost of tertiary studies was now just helping [their] mother at their family home with some gardening and farming. He said his [eldest sibling] who is [age] or [age] years of age is married and lives in a different village in [Town 3] whilst [another sibling] who is about [age] years of age had also moved away with [a partner] and now lived in the Southland Highlands on the border with [Town 3].
In reply to the Tribunal, he said that his family had not had any troubles since he left PNG and the only troubles that they had ever had, was what was caused by him with his former girlfriend.
He explained he had met his former PNG girlfriend, [Ms E] when they were at primary school together at [Village 2] Village in [Town 3]. They later became boyfriend and girlfriend when they were at high school in [Village 1], when he was [age] years of age, and she was [age] years of age. He said that they were in a relationship as boyfriend and girlfriend from 2019 to 2104.
He said that after they finished school, she ([Ms E]) would often come to his place (uncle’s home in [Village 1]) but that her parents had told her not to visit the applicant. However, it was his evidence that she continued to visit him at his uncle’s home and after further disputes with her family she committed suicide by hanging herself in a tree next to the fence of his uncle’s home in the afternoon. He said at the time of her death his mother was back at their family home in [Village 2]. He said that he ran away when he had been told by the neighbours that [Ms E] had been found dead next door to his uncle’s home. Under questioning he said he never went to see [Ms E]’s body and did not assist in removing her from the tree but rather he immediately left his uncle’s home as people were screaming and he believed he would be blamed. He said he caught a bus to [Town 4] that day and then caught a flight a couple of days later to Port Moresby because he feared being killed by [Ms E]’s father, brothers and fellow clan members from her village.
Under questioning he was unable to inform the Tribunal of the date of [Ms E]’s suicide but thought it was in about October 2014. He further said that he believed that police had come and that her death was reported in the local [Town 3] newspaper in which the report said it was ‘a suicide in the boyfriend’s area’. However, under further questioning he said that maybe the police had not attended, and he was unable to provide any details of the newspaper that he had said had reported her death. In reply to the Tribunal, he said he was never contacted by the PNG police as to [Ms E]’s death by suicide.
He explained that after [Ms E]’s death her family had sought revenge and had burnt down his uncle’s home after he left [Village 1] for [Town 4] and Port Moresby and that they had threated to kill him. However, the applicant did not provide and details and/or instances of threats being made to him and/or to others.
Under questioning as to the letter from [Leader A] as outlined above at paragraph 16, the applicant informed the Tribunal firstly that he did not understand that he could have a witness contacted by the Tribunal and give oral evidence by telephone. Secondly, [Leader A] had since negotiated a compensation arrangement between his clan and village and that of [Ms E]’s. Under further questioning he said this arrangement had involved his clan and village having paid a number of pigs and an amount of Kina. When further questioned the applicant provided several amounts as to the compensation amount before settling on a payment [number] pigs or nearly [number] pigs and [amount] Kina.
When questioned by the Tribunal as to why now that compensation had been paid, he could not now safely return to PNG. In reply, he said he should not as [Ms E]’s brother’s may still be angry but that he was trying to find out if things now had settled down. In reply to the Tribunal the applicant said that since this supposed compensation payment on his behalf that his family had not experienced any issues or had been subjected to any threats and/or violence from [Ms E]’s relatives and clan members. However, upon further questioning the applicant also conceded that since [Ms E]’s death the only issues for his family or threats and/or violence that they were subjected to, had been the burning down of his uncle’s house in [Village 1] shortly after [Ms E]’s death.
The Tribunal indicated to the applicant given [Leader A’s] letter provided a PNG telephone number that the Tribunal could contact him and take oral evidence from him. The Tribunal then made two telephone calls to the telephone number on [Leader A’s] letter and on the second occasion the call was answered by a female. This person indicated to the Tribunal that she knew of the [leader] in the [Town 3] area but that the number called by the Tribunal was not his number and that they had the wrong number. The applicant in reply to the Tribunal as to this phone call, informed the Tribunal that most likely the [leader] had lost his phone and this lady had picked it up and was now using [his] phone.
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 30 August 2018 and is interview with the department on 28 February 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 mattes 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 [Ms E] had committed suicide in October 2014. However, in his interview with the department he had said she had committed suicide in December 2014 after she had been staying at his mother’s home for a week when he was at his uncle’s home in [Village 1].
In reply to the Tribunal the applicant after pausing and shaking his head stated that he was confused about the months and could not remember when she had committed suicide.
·The Tribunal then drew to the applicant’s attention that it had been his oral evidence at the hearing that [Ms E] had committed suicide in a tree next to the fence of his uncle’s home in [Village 1]. However, in his interview with the department he had said she had committed suicide at his mother’s home after she had stayed there for about a week when he was away from the family home and staying with his uncle in [Village 1].
After a lengthy further pause the applicant told the Tribunal that it was true and nodded and after a further long pause, he said he had got things mixed up as it had been a long time ago. He further said that he could explain this confusion but that the Tribunal would not likely accept his explanation which was that his family home and his uncle’s home are in the same area but just in different clan areas and are close to each other.
The Tribunal in reply referred the applicant to his earlier evidence to the effect that it was an hour drive between those two locations. The applicant did not reply to this statement by the Tribunal.
·The Tribunal then highlighted to the applicant that is had been his evidence at the hearing that his uncle’s house had been burnt down in revenge for [Ms E]’s death but in his interview with the department he had said that it was his mother’s house that had been burnt down in revenge and she (his mother) had fled from her home to [Village 1].
The applicant told the Tribunal in reply that both of the houses had been burnt down and under further questioning he was unable to explain why he had not previously told the department and/or the Tribunal that both homes had been burnt down in revenge for [Ms E]’s death. The applicant did not further reply to the Tribunal.
·The Tribunal then highlighted to the applicant that it had been his oral evidence before the hearing that immediately after [Ms E]’s suicide, that afternoon, he had travelled to [Town 4] by bus and then two to three days later, by air to Port Moresby. However, in the applicant’s application for the visa, which he had earlier in the hearing adopted as being truthful, he had provided a different version of his movements. Those movements were that left [Town 3] in November 2014 and travelled to [Town 5] where he stayed for three months until February 2015 when he then travelled back to [Town 3] and remained there for 14 months until April 2016 at which time he then travelled to [Town 4] staying there for three months until July 2016 when he then travelled to Port Morseby where he remained until December 2016, a period of five months, before then travelling to Australia.
In reply the applicant said that the information on the papers (application form) was a lie. He further explained that it had been a lie that he had travelled from [Town 3] to [Town 4] and that he feels nervous and can’t remember his movements after [Ms E]’s death.
·The Tribunal also raised with the applicant that it had been his evidence that compensation had been paid by his family and clan to [Ms E]’s family and yet he had not indicated whether his family and clan had sought any compensation in relation to the purported burning down of his mothers and uncle’s homes.
In reply the applicant said that houses don’t matter so they are not worth compensation as they are not a traditional house, so you don’t pay for houses as they are not a life. He further said that his mother’s home had been rebuilt by the village boys and that probably his uncle’s home had been rebuilt. Again, at this time the applicant confirmed that but for these instances of the purported burning down of his families’ homes, there had been no other adverse and/or revenge incidents involving his family.
The Tribunal then discussed the country information as outlined above at paragraph 21 and in reply the applicant agreed with that 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 driver’s license to the department, 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 [Town 3], Western Highlands province of Papua New Guinea.
However, based on the evidence before the Tribunal and for the reasons explained below the Tribunal is not satisfied that the applicant’s purported former girlfriend [Ms E] committed suicide around late 2014 at his place of residence, either his mother’s house or his uncle or cousin’s house. Further the Tribunal for the reasons below is not satisfied that the applicant has been blamed for the purported death of his former girlfriend by her family and/or her clan and that her family and/or her clan want to kill him as retribution (payback). Additionally, the Tribunal for the reasons outlined below is not satisfied that his purported girlfriend’s family and/or clan burnt down his mother’s home, and/or his uncle’s or cousin’s home in an act of revenge against him for the purported suicide/death of his purported former girlfriend.
The Tribunal found the applicant’s evidence to be vague and inconsistent with his earlier version of events that he has provided to the department in his interview of 28 February 2019 and his visa application of 30 August 2018 as to significant events. Equally the applicant was unable to recall the timing of such events most notably the applicant could not recall the date and location of his purported former girlfriend’s suicide and could only indicate that she died on an unknown date (he could not recall given the passage of time) in either October (at hearing) or December 2014 (at the department interview). Additionally, at the hearing the applicant described his purported girlfriend being found by neighbours hanging from trees next door to his uncle’s or cousin’s home where he was then staying, causing him to flee this location. However, in his interview with the department he had stated that she had hung herself at his mother’s home one week after she had been staying there whilst the applicant was away from his family’s home.
Given the significance of this purported tragic event (death of his former girlfriend by suicide) and that this event forms the basis of the applicant’s fears and claims for protection the Tribunal does not accept it as being reasonable and likely in any sense that the applicant would not have a clear and detailed recollection of the date, timing and particulars including the location of this purported tragic event. This inability of the applicant to be able to provide a detailed and consistent description of this event seriously casts doubt on the applicant’s credibility.
Overall given the many inconsistencies as outlined above at paragraph 40 as to the applicant’s version of the events he relies upon to support his fears of harm and his claims for protection together with the manner in which the applicant gave his oral evidence to the Tribunal. Some of which included the applicant taking lengthy pauses before replying to questions and his failure to comment on some matters raised, the Tribunal finds the applicant to be a highly unreliable and an untruthful witness. For these reasons the Tribunal rejects all of the applicant’s evidence as to his claims for protection.
As to the letter provided by the Applicant purported to be under the hand of [Leader A] and noting the result of the Tribunal’s telephone call to the supposed contact number for [this official], as outlined above at paragraphs 16 and 39, together with the country information as to the prevalence of fraud as outlined above at paragraph 21, the Tribunal gives no weight to this letter.
Additionally, the Tribunal notes that the applicant arrived in Australia on 2 December 2016 and subsequently made his application for a protection visa on 30 August 2018, 20 months 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.

For the reasons above the Tribunal rejects the applicant’s evidence as to his claims in their entirety.
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 inconsistencies in the applicant’s evidence 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 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 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 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 Sierra Leone.
MINISTERIAL INTERVENTION
The Minister has issued guidelines explaining the circumstances in which the Minister may wish to consider exercising his or her public interest powers under s 417 of the Act. The guidelines indicate that the Minister will generally only consider exercising his or her public interest powers in cases which exhibit one or more unique or exceptional circumstances. Departmental policy (PAM3) concerning Ministerial intervention provides, as a relevant factor, ‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’.
In this regard, and notwithstanding the Tribunal finding the applicant to be an unreliable and untruthful witness the Tribunal acknowledges the personal circumstances of the applicant including his past and present de-facto relationship with an Australian citizen, [Ms B] which resulted in the birth of his Australian children, [Child C] born [date] and [Child D] born [date]. The Tribunal notes that the applicant’s Australian children will likely remain in Australia in the care of their Australian mother when the applicant is returned to PNG and that there may be expected and likely psychological harm that may arise for both the applicant and his Australian children and his Australian de-facto partner, if the applicant was to return to PNG.
When considering all of the applicants’ circumstances, the Tribunal considers it appropriate to support the applicant’s request to remain in Australia on a permanent basis so as he and his Australian de-facto and children may continue their contact and parental relationship in Australia. In considering the applicants case and the Ministerial guidelines relating to the discretionary power set out in PAM3 Minister’s guidelines on Ministerial powers: ss 351, 417, 501J of the Act, and noting that s 417 of the Act gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so, the Tribunal considers that the circumstances of the applicants’ case raise ‘unique or exceptional circumstances’ that justify possible intervention by the Minister.
Such circumstances are:
·Compassionate circumstances regarding the psychological state of the applicant, his Australian de-facto and his Australian children, arising from the possible break-up of their family unit if the applicant was returned to 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 1808

17 April 2023

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