1918098 (Refugee)

[2021] AATA 858

1918098 (Refugee) [2021] AATA 858 (23 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1918098

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Michael Hawkins AM

DATE:23 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 23 March 2021 at 3:42pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – grandson of the accused sorcerer – tribal warfare – credibility – inconsistent evidence – delay in applying for protection – applied after student visa cancelled – period as unlawful non-citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA [1994] FCA 1105
Subramaniam v MIMA (Carr J,10/3/98)
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Zhang v RRT [1997] FCA 423

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 June 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Papua New Guinea (PNG), applied for the visa on 21 January 2019. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm..

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

4. 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.

5. 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).

6. 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.

7. 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.

8. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

9. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Relocation

10. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

11. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Mandatory considerations

12. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background:

14. The applicant is a [age]-year-old man from [Town 1], province of Enga, PNG.

15. The applicant is unmarried. His father and step-mother live in PNG. He has [number] brothers and [number] sisters.

16. The applicant had previously travelled to and from Australia on three occasions using Tourist and Student Visas in 2010, 2013 and 2014.

17. The applicant most recently arrived in Australia [in] July 2015.

18. On 16 June 2017, the applicant’s [Student] Visa was cancelled, and the applicant became unlawful.

19. The applicant applied for a Protection Visa on 21 January 2019.

20. The applicant attended an interview with the Delegate on 3 May 2019 and provided additional information in support of his claims on 20 May 2019 prior to the decision by the Delegate.

    Claims:          

    As set out in his Protection Visa Application Form and as summarised by the Delegate in his Decision:

21. The applicant claims he lived with his grandfather after his mother died when he was four years old.

22. The applicant claims that his grandfather was blamed for the sorcery death of an old man in the village.

23. The applicant claims that after his grandfather died, people from other tribes believed that his sorcery practices were passed to the applicant.

24. The applicant claims he travelled to Australia to study.

25. The applicant claims that if he returns to PNG, he will be a target and be killed.

    As disclosed from his Post-Interview submission from his Representative’s submission and his Statutory Declaration dated 20 May 2019:

26. The applicant claims that as a consequence of his grandfather being killed, his tribe declared war on the enemy tribe and that many of the enemy tribesmen were killed.

27. The applicant claims that as many of the deaths were from the enemy side, the enemy tribe are revengeful.

28. The applicant claims that he is a target, because he is the grandson of the accused sorcerer.

    Evidence:

29. The Tribunal has before it a range of material, including, relevantly:

30. The applicants’ protection visa application forms completed and lodged on 21 January 2019 (“visa application”).

31. The applicants’ identity documents being a certified copy of passport;

32. The protection visa decision record (‘delegate’s decision record’) of 17 June 2019;

33. The review application form which did include a copy of the delegate’s decision record;

34. Letter to the Department from the applicant’s father dated 26 May 2017;

35. Letter to the Department from the applicant’s father dated 15 May 2018;

36. Statutory Declaration from the applicant’s adoptive mother dated 20 May 2018;

37. A submission by the applicant’s Representative dated 18 December 2018 which incorporated an application for a Bridging Visa E and a request for a permit to work;

38. A post-interview submission from the Representative dated 20 May 2019 incorporating Statutory Declaration of the applicant dated 20 May 2019;

39. Statutory Declaration of the applicant dated 9 January 2019;

40. A pre-hearing submission from the Representative dated 25 February 2021, including articles and media reports and a Statutory Declaration from [Mr A] dated 25 September 2019;

41. Statutory Declaration of the applicant dated 3 March 2021;

42. Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Papua New Guinea, published on 10 February 2017.

    Country of reference / receiving country

43. The applicant claims to be a PNG national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

44. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).

    Hearing:

45. The applicant attended the hearing on 10 March 2021.  The hearing was conducted by video with the applicant at the detention centre.  The applicant was represented by his Registered Migration Agent who attended the hearing by telephone.  The hearing was not assisted by an Interpreter.

46. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

47. The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Papua New Guinea. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Papua New Guinea. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

48. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Papua New Guinea.

49. The Tribunal read out and discussed his claims as set out above and as summarised in the Delegate’s Decision. It confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.

50. The Tribunal discussed with the applicant the documents that he had submitted prior to the hearing.

51. The Tribunal discussed the submission from the applicant’s Representative dated 25 February 2021, which submission set out the applicant’s understanding of his culture and considerable material in relation to sorcery and witchcraft.  The submission also included a number of articles addressing the issue of sorcery violence throughout Papua New Guinea and law reform in relation to sorcery.  The Tribunal also noted a Statutory Declaration from the applicant dated 3 March 2021 which acknowledged that the applicant had read the submission and its attachments and understood them.

52. The Tribunal also acknowledged a Statutory Declaration from a [Mr A] who was stated to be the Chief of [Tribe 1] of [Village 1], [Town 1], Enga Province in PNG.  The Tribunal stated that it would discuss [Mr A]’s Statutory Declaration later in the hearing.

53. The Tribunal discussed a summary of the following country information with the applicant.

54. The Tribunal noted the numerous extracts of media articles submitted by the Representative to the Department and to the Tribunal.  The Tribunal noted particularly articles dated [May] 2018 reporting the deaths of people involved in a tribal battle between the [Tribe 2] and [Tribe 1] Tribes.  The articles reported that the dispute was over a small parcel of land.

55. The Tribunal also noted that no information was submitted, and nor had it located any information from open sources at the time of the review, which referred to conflict with the [Tribe 1] that was a consequence of the death of an elderly man or sorcery.

56. However, in the 2015 Country Report on Human Rights Practices for Papua New Guinea[1], the US Department of State noted that during 2015 `[s]ocietal violence, particularly among tribes, was commonplace' in that country.' In addition, an August 2015 Inter Press Service[2] report stated that:

    Traditional warfare has existed in Papua New Guinea, home to a population of 7.3 million and an estimated 1,000 different ethnic and linguistic groups, for thousands of years.

    Hostilities can be triggered by disputes over land, pigs (the most prized livestock animal), or 'payback' for a wrong committed by one clan against another.[3]

    [1] US Department of State 2016, Country Reports on Human Rights Practices 2015— Papua New Guinea, 13 April, Section 1.d < Inter Press Service n.d., About Us < Wilson, C 2015, 'Clan Wars Increase Displacement, Hinder Development in Papua New Guinea', Inter Press Service, 14 August <>

    Reports refer to the prevalence of sorcery-related violence in Papua New Guinea more generally, particularly in rural areas and in the Highlands Provinces.[4] The most recent annual reports from the US Department of State, Freedom House, Human Rights Watch and Amnesty International all highlight sorcery-related violence as an ongoing issue in Papua New Guinea.[5] Reports have been located which refer to specific episodes of sorcery-related violence that took place in 2015 and 2016 including in the Enga and Western Highlands Provinces.[6]

    [4] PNG sorcery-accused granted asylum in Australia' 2016, Radio New Zealand International, 6 September < fi c-news/312657/png-sorcery-accused-granted-asylum- in-austral i a; PNG police save sorcery victim from 'certain death" 2016, Radio New Zealand International, 13 August <

    [5] US Department of State 2016, Country Reports on Human Rights Practices 2015— Papua New Guinea, 13 April, Section 6 < Freedom House 2016, Freedom in the World 2016— Papua New Guinea, 29 August, UNHCR Refworld < Human Rights Watch 2016, Human Rights Watch World Report 2016— Papua New Guinea, 27 January, p.448 < download/wr2016 web.pdf; Amnesty International 2016, Amnesty International Report 2013-16 — Papua New Guinea, 23 February < Fox, L 2015, `PNG men save elderly woman from sorcery killing, hope to start rapid response squad', ABC News, 11 February < Davidson, H 2015, 'Four accused of sorcery in Papua New Guinea await visit by spiritual diviner', The Guardian, 23 April <Intps:// ; Hill, B 2015, 'Four accused of witchcraft in Papua New Guinea's highlands; Locals threaten to burn them to death', ABC News, 22 April <httpiliwww.abc.net.aulnewsi2015-04-21/four-peopie-in-png-highlands-accused-of-witchcraW6410362>

57. A September 2016 Radio New Zealand International report stated that Papua New Guinea 'is still struggling to eradicate violent attacks on people accused of using sorcery among its majority rural-based population.’[7] An August 2016 Radio New Zealand International report stated that [s]orcery-related violence, often against women, was common in Papua New Guinea, where many people have been tortured or killed after being accused of sorcery.[8]  An August 2016 ChildFund Australia report also noted that '[i]n many PNG cultures, traditional beliefs blaming illness and death on witchcraft and sorcery still endure.'[9]  A November 2015 Amnesty International report stated that:

    Many people in Papua New Guinea believe that sorcery exists, and when tragedy occurs, particularly a death in a community, family and community members may blame the death on sorcery and seek to identify the culprit. A person accused of sorcery is likely to be subjected to, or at least threatened with, physical violence, often leading the person to flee the community[10]

    [7] 'PNG sorcery-accused granted asylum in Australia' 2016, Radio New Zealand International, 6 September

    [8] PNG police save sorcery victim from 'certain death" 2016, Radio New Zealand International, 13 August < Chandler J,2016, Tuberculosis: The cruel scourge for children in Papua New Guinea, ChildFund Australia, August, p.15 < Amnesty International 2015, Bashed Up: Family Violence in Papua New Guinea, 4 November, p5, type="1">

    A June 2013 Inter Press Service report also stated:

    Particularly in rural areas, where more than 80 percent of the nation's population of seven million reside, spiritual beliefs are still used to explain events in the physical world. Death, especially of young people, is attributed to evil forces.[11]

    [11] Wilson, C 2013, 'No Quick Fixes to Sorcery-Related Violence', Inter Press Service, 15 June >

    In its 2016 World Report for Papua New Guinea, Human Rights Watch stated that `[s]orcery accusations are often accompanied by brutal attacks, including burning of homes, assault, and sometimes murder.[12]

    [12] Human Rights Watch 2016, Human Rights Watch World Report 2016— Papua New Guinea, 27 January, p.448 <>

    In regards to state protection, Papua New Guinea has one of the lowest police-to-population ratios in the world.[13] Issues that adversely impact on the effectiveness of the Royal Papua New Guinea Constabulary (RPNGC) include insufficient personnel and resources, difficulties in obtaining the cooperation of local communities, issues of internal discipline and clan rivalries.[14] The US Department of State reported that 'in many cases police lacked sufficient personnel or resources to prevent attacks or respond effectively' to societal violence during 2015.[15] In addition, Freedom House stated that the RPNGC are 'largely ineffective in curbing mob violence, tribal warfare, and other crimes.[16]

    [13] Overseas Security Advisory Council 2016, Papua New Guinea 2016 Crime & Safety Report,11 July, p.9 < Overseas Security Advisory Council 2016, Papua New Guinea 2016 Crime & Safety Report, 11 July, p.9 < US Department of State 2016, Country Reports on Human Rights Practices 2015 —Papua New Guinea, 13 April, Section I.d < US Department of State 2016, Country Reports on Human Rights Practices 2015 —Papua New Guinea, 13 April, Section 1.d <>

    Although the Papua New Guinea government has announced a National Action Plan on Sorcery and Witchcraft,[17] reports indicate that the authorities' efforts to combat sorcery-related violence have been ineffective.[18] A number of factors adversely impact on the ability of police to respond effectively to sorcery-related violence, including insufficient resources, manpower and government support, particularly in rural and remote areas.[19] The involvement of whole communities in the perpetration of sorcery-related violence also causes issues for police who seek to investigate incidents and obtain co-operation from the communities in which they occur.[20]

    [17] US Department of State 2016, Countty Reports on Human Rights Practices 2015— Papua New Guinea, 13 April, Section 6 < US Department of State 2016, Countty Reports on Human Rights Practices 2015— Papua New Guinea, 13 April, Section 6 < Davidson, H 2016, TNG police examine torture of women accused of killing man with witchcraft', The Guardian, 21 January < Davidson, H 2015, 'Papua New Guinea students share video appearing to show women tortured for 'witchcraft", The Guardian, 23 October <>

    The Tribunal accepted that the country information was generally supportive of the applicant’s general claims about sorcery and tribal violence. It noted that the delegate appeared to have issues with the plausibility and genuineness of the applicant’s claims. The Tribunal discussed with the applicant that it would discuss the applicant’s claims with him and the concerns it had about some inconsistencies in his conduct which might cause it to have concerns about the genuineness of his claims.

    Assessment of Claims and evidence, and findings:

    The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

    The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

    The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

    The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

    The Tribunal has strong reservations about the genuineness of the applicant’s claims. Whilst the applicant had provided little detail in his claims contained in the protection visa application, he had provided some detailed narrative in his various statutory declarations in support of his claims.

    The Tribunal asked the applicant when he became aware of the tribal war.  He replied after his grandfather had died.

    The Tribunal asked the applicant when his grandfather died.  The applicant replied that it was in March 2015.

    The Tribunal asked the applicant when the old man died, who was allegedly the subject of his grandfather’s sorcery.  The applicant replied that he wasn’t sure.

    The Tribunal asked the applicant when the tribal war started.  The applicant replied that he wasn’t sure when it started.

    The Tribunal referred to the Statutory Declaration of [Mr A], the Chief of [Tribe 1].  In his statement, he stated that the applicant’s grandfather died in early 2016.

    The Tribunal asked the applicant how he might reconcile the inconsistency in the stated dates of death of his grandfather.  The applicant replied that his grandfather did indeed die in 2016.

    The Tribunal asked the applicant whether he knew how his grandfather died.  He replied that his grandfather was thrown into a cliff and that he then died of a stroke.

    The Tribunal referred again to the statement of [Mr A] who stated that the grandfather died of internal injuries.

    Again asked to reconcile the inconsistencies, the applicant replied that his grandfather was an old man and that having been thrown into a cliff would have had consequences.

    The Tribunal asked the applicant whether his grandfather was indeed a sorcerer. The applicant replied he was not. He confirmed that he was not a sorcerer either.

    The Tribunal asked the applicant whether he was aware of allegations and accusations ever having been made against his grandfather as to being a sorcerer.  The applicant replied that he had not heard anything like that.

    The Tribunal asked the applicant why it was that he, the grandson, was now accused of acquiring the grandfather’s sorcery skills, rather than the grandfather’s own son, being the applicant’s father.  The applicant replied that his father was not considered to be a sorcerer because his father was educated and lived in the city whereas he, the applicant, had lived in the village.  He reminded the Tribunal that he had lived with his grandfather from the age of four, after his mother had died.  He went on to add that his father had moved to the city and remarried.

    The Tribunal noted that the applicant too claimed to be educated and lived in Australia and was living in Australia at the time of his grandfather’s death and at the time the claim to sorcery was made.

    The Tribunal asked the applicant whether he had ever received any direct threats from the enemy tribe or anyone else accusing him of sorcery or threatening him with violence.  The applicant replied that he had not received any direct threats. 

    The Tribunal asked the applicant again how he had become aware of the danger that he claimed to be in.  The applicant replied that he became aware because of a letter from his father.  The Tribunal asked the applicant whether that was a letter dated 15 May 2018 addressed to the Immigration Office.  He replied that was the case.

    The Tribunal referred to the letter noting to the applicant that it referred to a number “of sorcery related issues that had led to several tribal wars and many of [the applicant]’s relatives had died as a result”.  The letter went on to urge the applicant to go to the Immigration Office and apply for a protection visa and for the Immigration Office to help his son.

    The Tribunal confirmed with the applicant that he was not aware of any risk or threat to him prior to having received the letter from his father in May of 2018.  The applicant confirmed that was the case.

    And the Tribunal again confirmed that the applicant himself had not ever received any direct threats of harm and or direct accusations in relation to his imputed sorcery.  The applicant confirmed that was the case.

    The Tribunal discussed with the applicant a number of events and dates, including the following.

    ·His arrival in Australia [in] July 2015;

    ·The death of his grandfather in either March 2015 or sometime in 2016;

    ·The cancellation of his Student Visa on 16 June 2017;

    ·The letter from his father dated 15 May 2018;

    ·His application for a Protection Visa on 21 January 2019.

    The Tribunal notes that the applicant became unlawful from June 2017.  The Tribunal also notes the Representative’s submission that he was afraid of being sent back home, which is why he did not submit himself to the authorities.

    The Tribunal also notes from one of the Representative’s submissions that the applicant was picked up for driving under the influence of alcohol and driving without a license in July of 2018.  It was submitted that the applicant did not attend court in relation to the charges as he was travelling to Western Australia as he intended to relocate there.

    The Tribunal notes that the applicant was not aware of any risks or threats to himself prior to seeing the letter from his father in May of 2018.  The Tribunal concludes that his fear of being returned to PNG when he became unlawful could not have been related to the alleged events that took place relating to his grandfather’s death.

    The Tribunal notes the claims made by the applicant in his Protection Visa application and whilst there is reference to the sorcery claim, there was no reference to the tribal wars and likelihood of a revenge killing.  This is despite a tribal war having been referenced in his father’s letter of May 2018.  The claim in relation to the tribal war materialised after the Delegate interview and in his Representative’s post-interview submission and his accompanying Statutory Declaration.

    Given the specificity of his father’s letter, which outlined the claims he ought make and the approach that he ought make to the Immigration Office, the Tribunal is concerned as to the absence of any claims in relation to the tribal wars and also concerned about the seven month delay it took the applicant to make a Protection Visa application.  The Tribunal explained that it might have doubts about the genuineness of his claims by virtue of the fact that it took him seven months from the date of his apparently learning of the risk to him after seeing his father’s letter, and some 18 months from becoming unlawful, in which to make his protection claims.

    The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

    A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, 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 fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

    The Tribunal is also very mindful of the fact that after his visa was cancelled, the applicant did nothing about it, instead electing to remain here illegally and notwithstanding an incident with the police (driving whilst under the influence and without a licence).

    The Tribunal specifically asked the applicant why it should not doubt the genuineness of his claims given these circumstances.

    The applicant replied that he didn’t know about protection visas or what to do.  He also added that he couldn’t afford a lawyer.

    The Tribunal noted that his father, in his letter of May 2018, specifically referred to a protection visa and the need to seek assistance from the Immigration Office and for the Immigration Office to assist him.

    The Tribunal asked the applicant why it was that he was in detention.  The applicant replied that he was taken into detention after being released from jail.

100.   The Tribunal asked the applicant about the circumstances of his being arrested, convicted and jailed.

101.   The applicant replied that in April 2017 he moved to [Town 2].  He became involved in a relationship and later there were allegations of domestic violence, the consequence of which he was arrested and jailed in December 2019 and he was released from prison in December of 2020 and then taken into detention.

102.   The Tribunal noted that [Town 2] has a large community of PNG nationals.  The applicant agreed.  The Tribunal queried of the applicant how it could have been that members of that PNG community would not have advised him of the availability of protection visas. He replied that they didn’t.

103.   The Tribunal reverted to the letter from the applicant’s father dated May 2018.  The Tribunal asked the applicant how his father, given that he was living in Port Moresby, would have learned of the risk and threat to the applicant.  The applicant replied that he didn’t know, but surmised that someone must have rung him.

104.   The Tribunal asked the applicant how the letter from [Mr A] was obtained, noting its date of 25 September 2019, which was some time after his father’s letter and some time after the Protection Visa application.  The applicant replied that he didn’t know, but that his father sent [Mr A]’s Statutory Declaration to him and that it was probably the only opportunity to get such a letter.

105.   The Tribunal noted from the Statutory Declaration of [Mr A] that “the family is making all efforts to get the male children, especially [the applicant] and [Mr B], out of the country as soon as possible before they are killed”.  The Tribunal noted that it was a strange observation to make given that the applicant had been in Australia since July of 2015, more than four years before that Statutory Declaration was made.

106.   The Tribunal noted that the applicant had relocated to Australia, a big country with a large population, and to which the applicant was a stranger.  It asked the applicant why he could not have moved to a larger city in PNG, as his own father had.

107.   The applicant replied that his father was educated.  The Tribunal noted that it appeared the applicant was also educated and indeed had come to Australia on a Student Visa.  Given that, why could he not also move to Port Moresby.  The applicant replied that he had lived in a village all his life, and that he had inherited his grandfather’s house, because he lived with his grandfather.  The Tribunal noted that the applicant had travelled regularly to Australia and had been residing in Australia since July of 2015.

108.   Further, the Tribunal noted that the applicant’s brothers and sisters continued to live in the village, apparently without risk or threat.  The applicant confirmed also that he had uncles and cousins that lived in the village.

109.   The Tribunal noted that the applicant’s father, stepmother and step-siblings lived in Port Moresby.  The Tribunal asked the applicant why he could not return to Port Moresby and be looked out for by his own father.  The applicant replied that to do so would make his father and his family a target, it would put them at risk.

110.   The Tribunal asked the applicant what employment he had had in PNG.  He replied that he farmed in the village.

111.   The Tribunal asked the applicant what employment he had had in Australia.  He replied that he was not working in Australia.  The applicant stated that there were no work prospects for him in Port Moresby.  He also stated that PNG was a small country and that word gets around.

112.   The Representative submitted that the applicant was very concerned about going back to PNG.  She stated that he would prefer to go to another country than return to PNG which, in her mind, showed that he is really scared.  She added that PNG people don’t process information the way that we do in Australia, which the Tribunal understood to explain the revengefulness of tribes.  The Representative reiterated that PNG was a small country and that his whereabouts would become quickly known.

113.   The Tribunal was troubled by much of the applicant’s claims and evidence.

114.   He had lived with his grandfather from the age of four to his leaving in July 2014 when he resided in Australia for 6 months, and then again in July 2015 when he claims he departed to continue studying. He states that he knew his grandfather was not a sorcerer. He states that he himself is not a sorcerer.

115.   He states that at no time was he aware of any accusations having been made to his grandfather, or to him, about being a sorcerer.

116.   He has not received any direct threats of harm or accusations relating to sorcery.

117.   He was unsure as to when his grandfather died and the cause of his death, though was aware, evidently from the statement of [Mr A] that his grandfather was thrown into a cliff.

118.   He has no knowledge of the death of the other man or the circumstances surrounding it.

119.   He had no knowledge of tribal wars until seeing a letter from his father dated 15 May 2018. He did not know when they started or any circumstances about them. He claimed sometime after making his protection visa application and attending an interview with the department that the tribal wars were initiated following the death of his grandfather and that the two events were connected – notwithstanding that he claims to have known about his father’s letter which was received in May of 2018.

120.   He submitted a statement from [Mr A] which on its face corroborates his claims as to sorcery, tribal wars and a risk to him. He can not explain the circumstances in which the statement came to be or why or how it was dated in September of 2019, after his claims had been made, considered and rejected by the department. He claims he received the statement from his father.

121.   He can not explain how his father knows about the claims of sorcery and tribal wars given his father lives in Moresby – other than to surmise that someone must have rung him.

122.   The statement from [Mr A] refers to the need to get the applicant and his brother out of PNG as soon as possible, notwithstanding that the applicant had been out of PNG already for four years.

123.   Notwithstanding that he knew about his father’s letters to the department in 2017 and 2018, and the need to seek a protection visa, he did not seek a protection visa until 7 months after the May 2018 letter, and at a time when he was already unlawful, and had been for eighteen months.

124.   The Representative has submitted a lot of information in relation to sorcery and tribal wars which the Tribunal has acknowledged. The Tribunal notes the applicant’s explanation to the delegate that the information was provided in support of his proposition as to lawlessness and lack of state protection.

125.   However, no country information has been submitted, and the Tribunal, on making its own inquiries, has not located any information, that corroborates a claim as to any tribal war involving [Tribe 1] being started as a consequence of the death of an old man, the death of the applicant’s grandfather or the involvement of any sorcery or sorcerers.

126.   However, country information has been submitted (an article in [news source], dated [May] 2018) that references a tribal battle between the [Tribe 2] and [Tribe 1] Tribes in which two men were killed, which brings the deaths to eight, which was started over a dispute about a small parcel of land.

127.   Given the delay in applying for a protection visa, particularly after his father had told him to apply for one immediately, and given his failure to make a written claim at the time of making his protection visa application in relation to the tribal war despite the advice provided by his father in May 2018, and given that no country information can be located that corroborates any tribal war involving [Tribe 1] by reason of the deaths of an old man, or the applicant’s grandfather or the involvement of sorcery, but rather specific country information that references a tribal battle the result of a dispute over a small parcel of land, the Tribunal does not accept that the applicant or his grandfather have been accused of sorcery or witchcraft.

128.   The Tribunal does not accept therefore that the applicant has any fear of returning to PNG on that basis.

129.   The Tribunal is concerned that if the tribal wars were as significant as claimed, then the applicant would have had knowledge of them well prior to the letter from his father. Furthermore, the applicant could not have omitted reference to them in his protection visa application given their relevant importance to a protection claim.

130.   The Tribunal does not deny the existence or possibility of a tribal war involving the applicant’s tribe, and at the time so claimed, but prefers the country information submitted that references the cause as a dispute over land.

131.   Accordingly, as the Tribunal does not accept that accusations of sorcery have been made against him or his grandfather, it does not accept that sorcery contributed to, or was the cause of, the tribal wars referenced in the applicant’s evidence and supporting letters from his father or [Mr A]. The Tribunal does not accept that any tribal war or fighting involving the applicant’s tribe was started by, or had as its cause, the death of an elderly man, the death of the applicant’s grandfather or any accusations of sorcery against the applicant or his grandfather.

132.   The Tribunal is of the view that the correspondence from the applicant’s father is embellished firstly to provide reason for the applicant’s student visa cancellation and then to assist with a protection visa application claim.

133.   The Tribunal is of the view that the statement from [Mr A] was obtained by the applicant’s father to assist the applicant’s claims in this review and to address evidential shortcomings exposed by the delegate in his decision.

134.   In conclusion, the Tribunal does not accept that the applicant was accused of sorcery by an opposing tribe or anyone.

135.   The Tribunal does not accept that the applicant’s life was threatened as a consequence of that accusation.

136.   The Tribunal does not accept that he will be hunted and killed by an opposition tribe or anyone if he returns to PNG.

137.   The Tribunal does not accept that the applicant cannot return home.

138.   The Tribunal is satisfied that the applicant does not need to relocate within PNG.

Cumulative claims

139.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of him or his grandfather being accused of sorcery, or any other reason if he returns to PNG now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to PNG. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

140.   The Tribunal has considered the applicant’s claims under complementary protection. 

141.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on the grounds of him or his grandfather being accused of sorcery, or any other reason if he returns to PNG now or in the reasonably foreseeable future.

142.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to PNG now or in the reasonably foreseeable future.  

143.   Accordingly, and applying the authority in, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

Conclusion: Refugee Criterion

144.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

145.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that are not 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 he will suffer significant harm.

Overall conclusion:

146.   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).

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

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

DECISION

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

M Hawkins AM
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.

…

' 'PNG sorcery-accused granted asylum in Australia' 2016, Radio New Zealand International, 6 September
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