1921903 (Refugee)

[2024] ARTA 563

1921903 (REFUGEE) [2024] ARTA 563 (6 NOVEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Home Affairs

Tribunal Number:  1921903

Tribunal:General Member H Kim

Date:6 November 2024

Place:Sydney

Decision:The Tribunal affirms the decisions under review.

Statement made on 06 November 2024 at 7:04pm

CATCHWORDS

REFUGEE – Protection Visa – Papua New Guinea –– race – Kukulika – religion – Christian – dispute with another tribe for their compensation claim over death – applicant could not identify claimed tribe – evidence about the claimed threats and attacks was vague and speculative – voluntary returned to PNG – inconsistent evidence – claims do not have a credible basis – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Migration Act 1958, ss 5, 65, 351, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF 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 2 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be nationals of Papua New Guinea, applied for the visas on 25 January 2018. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations and that they are not members of the same family unit as a non-citizen who holds a protection visa.

3. On 8 August 2019, the applicants applied for review of the delegate’s decision to the Administrative Appeals Tribunal (AAT). On 30 August 2024, the AAT invited the applicants to appear before it on 31 October 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicants’ favour on the basis of the material before it.

4. On 2 September 2024, the first named applicant (hereafter referred to as the applicant) requested a postponement of the hearing on medical grounds. In support of this request, the applicant submitted a letter from his GP, Dr [A], dated 2 September 2024, which stated that the applicant is unable to sit for longer than 30 minutes following a [operation] in January 2024, he has been continuing specialist care and is expecting a review on 28 January 2025. The letter requested the hearing to be postponed for 6 months and that the applicant is available from the end of February 2025.

5. Given that the requested postponement was for a significantly lengthy period, the AAT wrote to the applicant to provide more details about his medical condition including any hospital and surgery documents relating to his claimed [surgery] in January 2024, post-surgery treatment and medication, and the claimed specialist care that he continues to receive such as rehabilitation and/or physiotherapy programs. The AAT considered it was necessary to obtain these further details because the general and brief information in Dr [A’s] letter of 2 September 2024 appeared to be inconsistent with the applicant’s pre-hearing information submission of 9 July 2024, where he indicated that he did not have any issues that may affect his or the other applicants’ ability to take part in the hearing including health problems or disability and that he did not have any dates in the next 3 months that he and the other applicants will not be able to attend a hearing.

6. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

7. On 18 October 2024, the Tribunal received the following medical documents from the applicant:

   a)A letter from Dr [A] dated 17 October 2024, stating that the applicant had ‘[an operation] on 31 January 2024 for [a condition] due to a work related injury in August 2020.’

   b)A ‘Nursing Discharge Summary’ dated 5 February 2024 from [a] Hospital, indicating that the applicant was admitted [on] 31 January 2024 and discharged from the hospital on 5 February 2024 as planned. Post-operation recommendation includes ‘avoid heavy lifting’, ‘gentle exercise’ and ‘take pain relief as prescribed.’

   c)A ‘Clinical History and Observation Findings’ dated 19 March 2024 from Associate Professor [B] who performed the surgery, states that the applicant is walking slowly, has had some improvement since preoperatively, engaged with physiotherapy and his wound is healing well. A/Prof [B] records that the applicant is making reasonable progress and that the applicant continue with physiotherapy and that swimming would be good to add.

   d)A progress report from A/Prof [B] dated 19 July 2024 records that the applicant is ‘doing quite well, his leg pain is gone, he reports some low back and left buttock pain when he sits or stands for too long in the same position.’ A/Prof [B] recommended that the applicant to ‘gradually get back to all his activities without any particular restriction’ and that ‘mobility exercises such as yoga would be of great help to improve his residual back pain.’

   e)A letter from [a named] Exercise Physiologist, dated 17 June 2024 reports the applicant’s functional capacity as of 14 June 2024 as follows: 30 minutes static standing before needing to change position and 15 minutes sitting before needing to stand due to left pain that travels down left leg.

8. Having carefully considered the medical documents, I did not consider that the requested 6-months postponement of the hearing was appropriate for the following reasons.

9. First, the hearing mode could be adjusted to video to allow the applicant to appear from the comfort of his home where he could shift positions and move as necessary. Further, the Tribunal could accommodate the applicant by taking breaks as necessary throughout the hearing or adjourn to hear from him over a number of days. This had been explained to the applicant by the Tribunal over the phone and emails.

10. Secondly, the medical evidence did not suggest that his discomfort or pain in remaining in the same position would prevent him from giving oral evidence, nor did it indicate any specific change to the applicant’s condition in 6-months’ time that would better enable him to give oral evidence.

11. Thirdly, a significant time has passed since the applicant’s claimed events occurred in Papua New Guinea (between 2011 and 2017), the lodgement of the applicants’ protection visa application (January 2018) and the lodgement of the review application (August 2019). However, there was limited updated written information from the applicant in support of his protection claims even though the Tribunal requested updated statement and documents which may assist in confining the issues under review and shorten the hearing. His updated statement dated 22 October 2024, received by the Tribunal on 25 October 2024, generally stated that ‘we have not heard anything from home regarding the issues we had in the past but the threats still remain same I assume.’ It did not provide any specific details nor address the concerns expressed in the delegate’s refusal decision.

12. In these circumstances, I considered it was important to hear the applicant’s direct oral evidence, and proceeding with the scheduled hearing was reasonable, fair, just and in accordance with the Tribunal’s objective to resolve the matter as quickly and with as little formality and expense as a proper consideration of the matter permits. I also considered that the change of hearing mode and accommodating the applicant throughout the hearing were appropriate measures to ensure that the hearing and the review process was accessible and responsive to the applicant’s particular needs.

13. Accordingly, the applicant appeared before the Tribunal on 31 October 2024 at a video hearing to present his case and give evidence. His wife, the fourth named applicant, attended as a support person and confirmed that she was not giving evidence. The applicant confirmed that he was the primary applicant giving evidence on behalf of all applicants, and that his family members are secondary applicants who do not have independent claims of their own and are applying only as members of his family unit. He also confirmed that he did not have any witnesses from whom he wished the Tribunal to hear evidence.

14. The applicant spoke excellent English and gave evidence in English. Although an interpreter in the Pidgin (PNG) and English languages was available upon his request and he was advised that he could access the interpreter’s assistance as necessary, he did not require any assistance throughout the hearing.

    BACKGROUND

15. The applicants are a family from [City 1], Western Highlands province of Papua New Guinea, consisting of the following members:

    ·The applicant, [name], born in [year] ([age] years old);

    ·His wife, [born] in [year] ([age] years old);

    ·Their children:

    o[Mr C], born in [year] ([age] years old);

    o[Mr D], born in [year] ([age] years old);

    o[Mr E], born in [year] ([age] years old);

    o[Mr F], born in [year] ([age] years old);

    o[Mr G], born in [year] ([age] years old);

    o[Ms H], born in [year] ([age] years old);

    o[Ms I], born in [year] ([age] years old); and

    o[Mr J], born in [year] ([age] years old).

16. The applicant, his wife and his children, [Mr D], [Mr G], [Ms H], [Ms I] and [Mr J] have been living in their home in [Town 1], NSW since 2019. [Mr D] works fulltime for [an employer], while the other children are still young and attend the local schools. [Mr C], [Mr E] and [Mr F] did not move to [Town 1] with the rest of the family and live in Sydney. [Mr C] and [Mr E] work fulltime and [Mr F] is a student at a [high] school in [suburb]. [Mr C] and [Mr E] fully support themselves financially and are not dependent on the applicant. [Mr F] is financially supported by his brothers in Sydney and his parents in [Town 1].

17. The applicant identified himself as being of Kukulika ethnicity and Christian.

18. His family in Papua New Guinea currently consist of his elderly mother who lives in and is looking after the applicant’s home in [Village 1] village, [City 1], his elder brother [name] who is retired and lives nearby with his family in [Village 1] village, his younger brother [Mr K] who also lives nearby with his family in [Village 1] village and works in a [shop], and [married] sisters who live with their respective families in other villages. His brothers look after their mother. The applicant only speaks to [Mr K] every 2-3 months to check on him and their mother. He does not contact any other family members or relatives in PNG.

19. In PNG, the applicant worked as [an Occupation 1] for [Company 1] from 1988 to 2007 and for [another company] until October 2010. For the first 4 years with [Company 1], he was single and based in Port Moresby. He married his wife [in] 1993 and they moved around and lived in various provinces due to his work. His wife was always able to obtain [jobs] in the provinces. The family returned to [Village 1] village in 2010 and until 2014, the applicant worked with [an employer] as a [occupation]. He also operated his car rental business [from] around 2010 in [Village 1] village. The applicants all lived together in their village home in [Village 1] village until coming to Australia. Just prior to coming to Australia, [Mr C] lived and attended university in Lae.

20. The applicant previously visited Australia in October 2010 – January 2011 for a [treatment] in [Australia], in [July] 2015 for a holiday by himself, and in [November] 2016 for a holiday with his son [Mr C] who stayed on until [date] January 2017. His wife previously visited Australia in November 2011 – February 2012 and in [date] December 2013 – [date] January 2014 for holidays. The latter trip was joined by her daughter [Ms I].

21. The applicant, his wife and their children except [Mr C] arrived in Australia on [date] October 2017. [Mr C] then followed on [date] November 2017. The applicant returned to PNG on [date] November 2017 and last entered Australia on [date] January 2018.

    Evidence before the Department

22. The applicants submitted their paper protection visa applications containing their background information, with subsequent amendments to clarify their travel history in January 2018. The applicants’ background information was further clarified and supplemented by the applicant’s statutory declaration of 27 February 2018 (the 2018 Statement), the oral evidence of the applicant, [Mr C] and [Mr D] at a Departmental interview on 10 May 2019 and the information in Departmental Form 47A ‘Details of child or other dependent family member aged 18 years or over’ of [Mr C] and [Mr D] submitted on 23 May 2019. The Department file also includes the biopage copies of each applicant’s Papua New Guinea passport.

    The 2018 Statement

23. Only the applicant provided a statement outlining his claims. The 2018 Statement provides, in summary:

    a)The applicant fears he and his family will be seriously harmed or killed by [Mr L]’s family, tribe and allies, if they return to Papua New Guinea.

    b)In 2010, the applicant and his wife returned to [City 1] and bought a car out of their retirement funds and started a car rental business.

    c)In around April 2011, they bought another car to expand the business. About a week later, a man named [Mr L] from [Enga] province, rented the car and died in an accident where he drove the car off a cliff. The car, which was practically new and had nothing wrong with it, was written off. The police investigated the accident and concluded that the car had not contributed to the accident. The police prepared a report.

    d)In around June or July (2011), [Mr L]’s family and other members of [Mr L]’s tribe came to the applicant’s house and demanded compensation for [Mr L]’s death. The applicant refused to pay, and they had a heated argument where members of [Mr L]’s tribe threatened to kill them. The applicant didn’t go to the police because the PNG police are ineffective particularly when it comes to issues of conflict between family and tribal groups. [Mr L]’s people visited every 4-5 months to threaten them. These threats continued on and off from 2011 until the applicants left PNG in October 2017 to come to Australia.

    e)In around February 2012, the applicant’s house in [Village 1] village was burned down. The applicant was not at home and the rest of the family who were present managed to escape. His son [Mr C] suffered burns from the fire. Afterwards, they asked around the community and established that members of [Mr L]’s tribe were responsible for the fire.

    f)In January 2013, the applicant received a letter demanding compensation but he refused to pay. Shortly after, the applicant was confronted by a group of about 10 men in [City 1], who demanded that he pay compensation to [Mr L]’s family. The argument escalated to a physical fight and the applicant was stabbed in the left hand. After this incident, the applicant went to Lae for a month and then Port Moresby for another few months. He returned to his village in around June/July 2013. Whenever he was in [City 1], he feared about what would happen to him.

    g)In 2014, the applicant was again confronted by members of [Mr L]’s tribe in [City 1] who repeated their demands for compensation and threatened him. After this incident, the applicant stayed in [Village 1] village because he was afraid of what would happen to him in [City 1]. When he returned to [City 1] after many months, he was again confronted by the same people who drew knives and threatened him. He returned to his village and stayed there for the rest of 2015. He believed he was safe in his village because the other members of his tribe would protect him if he was attacked there.

    h)By October or November 2016, the applicant was tired of being at home all the time so he came to Australia with [Mr C]. The applicant returned to his village around December 2016 but [Mr C] stayed for 3 months until early 2017.

    i)On 9 January 2017, the applicant’s brother was killed over a land/political dispute by another neighbouring tribe (not [Mr L]’s). They reported to the police but nothing happened.

    j)In around October 2017, [Mr C] was confronted by members of [Mr L]’s tribe in Lae where he was attending university. The men demanded compensation and threatened him. When [Mr C] was threatened, the applicant decided that was enough. The applicant’s family were virtually prisoners in their own village because they were afraid of what would happen to them if they went anywhere especially [City 1]. After [Mr C] was threatened in Lae, [Mr D] stopped going into [City 1] to go to school. Although the applicant may have been safe in his village, it was impossible for him to earn a living to support his family. After [Mr C] was threatened in Lae, it was clear that they were not safe anywhere in PNG.

    k)The applicants were also afraid that [Mr L]’s family and tribe have arranged sorcery to harm them, including by poisoning their food.

    l)The applicant returned to PNG on [date] November 2017 to sell his 2 cars to raise money to support his family. His family remained in Australia because the applicant was concerned about their safety. The applicant was afraid to go to [City 1] so he went from Port Moresby to Lae to stay with friends. In Lae, the applicant telephoned his brother in [City 1] who informed that there were people in [City 1] carrying guns and looking for him. The applicant knew he would not be able to sell his cars so he returned to Australia on [date] January 2018.

    m)The applicants cannot relocate within PNG because it would be dangerous to move to another city where they have no connections to help protect them. [Mr L]’s tribesmen are everywhere and would track the applicants down as happened with [Mr C] in Lae. The applicant is well-known in PNG because he played [sports].

    n)The applicants cannot rely on state protection because the police in PNG are ineffective particularly when it comes to issues of conflict between family and tribal groups.

    Departmental interview on 10 May 2019

24. The applicant, [Mr C] and [Mr D] attended an interview with the delegate to give evidence in support of their application. I have listened to the audio recording of the interview, and I am satisfied that the delegate’s decision record accurately summarises the oral evidence given by the applicant, [Mr C] and [Mr D]. Their evidence in relation to the protection claim included the following:

    a)The applicant’s car rental business was not registered as it was not a requirement in PNG. The business name was [name], but he did not have any documents available as it was all destroyed in the house fire in 2012.

    b)In relation to the claim that his brother was murdered in January 2017 over land or political issue, the applicant clarified that it was his cousin (uncle’s son) whom he refers to as his brother. He stated that as the compensation was paid, there was no tribal conflict. He confirmed that he does not fear returning to PNG for reasons relating to his cousin’s murder.

    c)He clarified that he played [sport] when he was [age]. He participated in a tournament [in] around 1994 once. He played locally with the clubs in various provinces all over PNG until around 2004 or 2007.

    d)The applicant confirmed that he did not know [Mr L]’s tribe name.

    e)In relation to the 2012 house fire, the applicant and [Mr C] confirmed that no one from [Mr L]’s tribe was seen. However, they maintained the claim that they assumed it was [Mr L]’s tribe and that the fire was deliberate.

    f)In relation to the letter of demand received in 2013, the applicant claimed that [Mr L]’s people demanded 300,000 kina and 100 pigs as compensation for [Mr L]’s death. The applicant refused to pay as he was found not to be at fault. Subsequently, he and 3 of his men were confronted by 10 of [Mr L]’s men in [City 1], but the applicant and his men escaped harm as a crowd of people came to their assistance.

    g)The applicant claimed he continued to be threatened in 2014 and 2015. When it was put to him that although he claimed to be in hiding for a significant amount of time in 2015, his movement history indicates a trip to Australia in 2015, the applicant claimed that he travelled to Australia to flee the threats he was experiencing at the time. However, he claimed that he had not thought to apply for protection earlier, and the incident involving [Mr C] in 2017 was what prompted the family to seek safety in Australia.

    h)The applicant claimed that his tribe did not want to retaliate against [Mr L]’s tribe for the events of harm experienced by the applicant and his family including the 2012 fire and the 2013 group attack in [City 1]. He claimed that [Mr L]’s family was targeting him directly because it was not really a tribal issue. He also claimed that his wife was not targeted because women are not targeted in tribal violence in PNG.

1. The applicant, [Mr C] and [Mr D] were also questioned by the delegate about their movements within PNG and to Australia, employment in Australia and money transfers to PNG from Australia.

   The applicant’s post-interview statement dated 23 May 2019 (the 2019 Statement)

2. After the interview, the applicant submitted a statement addressing the concerns raised by the delegate. The 2019 Statement provided in summary:

   a)If the applicant was to come to Australia for business/economic opportunity, he would not have brought his entire family to Australia. He came with his whole family because their lives were in danger in PNG.

   b)[Mr C] and [Mr D] did a bit of work in the farm in Australia to meet daily needs for the family but not for so long.

   c)When they came to Australia, they left 2 cars in PNG. One car was sold by [Mr K] when the applicants were in Australia. Money was transferred from Australia to [Mr K] to show appreciation for selling the applicant’s car, to the mechanic for fixing and servicing the car before selling, for grandmother, and for the fourth-named applicant’s parents.

   d)The applicant cannot provide any supporting documents relating to his claims because they have been burnt in the 2012 house fire. He also could not find a copy of the demand letter received in 2013.

   e)The applicant’s family or his tribe did not get involved in his dispute with [Mr L]’s tribe because they knew the applicant wasn’t responsible for [Mr L]’s death. If the applicant had provoked the situation, his tribe would have been greatly involved and there would have been more deaths on either side.

   f)At the time of writing his 2018 Statement and the Departmental interview, the applicant forgot to mention his 2015 travel to Australia. He travelled in 2015 to stay out from the ongoing threats and pressure.

   g)Despite the incidents of harm, the applicant never thought of relocating to another place within PNG or to another country abroad. He thought things might change for good and the idea of seeking protection in Australia never came to his mind during his trips in 2015 and 2016. When [Mr C] was confronted/attacked at his school in Lae, it was clear that his family was not safe anywhere within PNG and that’s the time when he decided to flee PNG to Australia with his whole family.

   h)His rental car business ceased operation after the accident (2011).

   Delegate’s decision

3. The delegate was satisfied the applicant’s personal details and the 2011 incident were credible. However, considering the applicant’s responses at the interview, written claims and the family’s migration history, the delegate had doubts in relation to the veracity of their claims for protection.

4. First, the delegate found the applicant’s evidence regarding the claimed incidents of threats, attacks and harm against him and his family in PNG to be vague, inconsistent and unpersuasive.

5. Secondly, the delegate considered the applicant’s claim that his tribe and family were not involved or targeted by [Mr L]’s tribe to be implausible based on the country information on ‘wantokism’ and the applicant’s evidence. The delegate considered the country information including that tribal violence occurs for a range of reasons including the custom of revenge or ‘payback’ under the ‘wantokism’ system which requires the entire clans or tribes to retaliate against perceived wrongs committed against fellow clan members, and women are vulnerable in ‘payback’ feuds as they are disproportionately affected by sorcery. In light of this information, the delegate considered it unlikely that the 2012 house fire and 2013 attack against the applicant would not have provoked a response from the applicant’s family and tribe, and that it was difficult to believe his wife was not targeted as a woman and avoided harm, particularly given she resided in the same residence after the 2012 house fire and was a joint owner of the car rental business. The delegate also had doubts about the applicant being unaware of [Mr L]’s tribe name given they had targeted the applicant since 2011 and identity is underpinned by tribal association in PNG.

6. Thirdly, the delegate considered the applicant and his family’s movement history and the delay in applying for protection in Australia undermined his claim for protection. The delegate was not persuaded by the applicant’s response that he had not thought of applying for protection earlier on previous visits to Australia during the period in which his claimed incidents of harm occurred. The delegate was also not persuaded by the applicant’s reason for returning to PNG to sell his 2 cars, given his post-interview submission that [Mr K] sold a vehicle for him, which suggested that [Mr K] could have sold both vehicles for the applicant who had fled to Australia to seek safety with his family. The delegate also considered it significant that the applicant stayed in PNG for over a month from November 2017 to January 2018 whilst claiming to be targeted and threatened to be killed.

7. Fourthly, the delegate found the responses from the applicant, [Mr C] and [Mr D] in relation to their employment in Australia and money transfers to PNG to be vague and unpersuasive. The applicant’s post-interview submission that he transferred money to [Mr K] for selling the car was inconsistent with the transfer records of more than one occasion and his initial oral omission of sending funds to family in PNG.

8. Finally, the delegate found the applicant’s inability to provide supporting documents raised doubts to the veracity of his claims. While the delegate could accept the 2012 house fire, they were not convinced that the applicant could not obtain any supporting documents about his business or numerous attacks from [Mr L]’s family in PNG.

9. Considering all of the above, while accepting that the applicant had a rental car business and [Mr L] died in an incident, the delegate was not satisfied that the applicant suffered harm or threats by [Mr L]’s tribe or family. Also, while accepting that the applicant’s house burnt down in 2012, the delegate found there was no information that supports this was an arson attack from [Mr L]’s family or tribe. Accordingly, the delegate was not satisfied that the applicant genuinely feared returning to PNG for the claimed reasons or that his claimed fear of harm in PNG was credible. It followed that the delegate was not satisfied [Mr C] and [Mr D] were being targeted by [Mr L]’s family or tribe or that they have suffered threats or targeted attacks for this reason. Therefore, the delegate was not satisfied that the applicants would face a real chance of persecution or a real risk of significant harm in PNG.

   Evidence before the Tribunal

10. Since lodging their review application, the applicants have submitted the following documents to the Tribunal:

    a)Employer reference letters from [an employer] dated 22 September 2020 and 22 October 2024 stating generally that the applicant and his family relocated to [Town 1] in July 2020 to take up the job opportunity as a [role], that they have settled well into the small community with active involvements in school and church activities, and that the applicant is an honest, reliable and hardworking employee.

    b)Reference letters from [a] Church dated 1 February 2021 and 23 October 2024 generally commending the applicant and his family for integrating well into their small community in church, school and work, being of high moral character, and worthy and active members of their town. In the 1 February 2021 letter, the Vicar comments that whilst he is in no position to question some of the findings in the Department’s decision, he honestly believes the applicant’s fear of payback, ‘wantoks’ upon return to PNG is genuine.

    c)A letter from Dr [A] dated 23 December 2022 generally urging the finalisation of the applicants’ application for permanent residency. The brief letter states that the applicant has become a valued community member, he and his family contribute to [Town 1]’s economy and the uncertainty of the applicant’s situation causes him severe anxiety and subsequently hypertension.

    d)The fourth named applicant’s [qualification] awarded 19 November 2021 and academic transcript.

    e)The medical documents mentioned at [4] and [7] above in relation to the applicant’s medical condition following the January 2024 [surgery].

    f)A reference letter from [named person] dated 22 October 2024 generally commending the applicant and his family’s contributions to the [Town 1] community in work, school and sport, and that they have become valued and respected members of the close-knit community. She claims that the lives of the applicant and his family changed when the applicant as a [Occupation 1] in PNG became aware of corruption in his country and challenged it. She also claims that the family was threatened and their lives endangered, and the applicant and his wife made the decision to bring their young family to Australia. 

11. The applicant also submitted an updated statement dated 22 October 2024 (the 2024 Statement), which included the following information in support of his application:

    a)For the last 7 years of working and living in Australia, they have adapted [sic] so well to the society, they have not received any forms of threats like they used to back home in PNG, and life has been a smooth sail for them.

    b)The applicant, his wife and 3 sons are working to support the family and contributing meaningfully to the economy of the country, whilst the children are enjoying school. The children can see a future for themselves unlike in PNG where law and order is a great concern.

    c)They have not heard anything from home lately regarding the issues they had in the past but the applicant assumes that the threats still remain the same. As can be seen in media, law and order is of great concern for PNG and it seems to be a daily occurrence in all parts of the society including cities and towns. Going back to PNG will mean that the applicants will always live in fear and would not progress in any form of life. Most problems are caused by the elected leaders who want to stay in power for too long and the use of ordinary people to fight against each other is becoming chronic in the society. Most of these problems are happening in the villages and towns of those people who threatened the applicants.

    d)Going back to PNG will ruin their lives and they are not prepared to return. 7 years is too long, they are part of this society and they feel comfortable living and working here.

12. As noted above, the applicant appeared by video before the Tribunal to give evidence on behalf of all applicants. I discussed with the applicant the material before the Tribunal including his submissions to the Department and the Tribunal set out above and he submitted that he believed everything in those material to be correct, true and complete. I noted that in the visa application form, his children including [Mr C], [Mr D], [Mr E], [Mr G], [Ms H], [Ms I] and [Mr J] had indicated ‘Yes’ to the question regarding whether they were making their own claims for protection. The applicant confirmed that his family members including all his children did not have claims of their own but were applying as members of his family only. He also confirmed that the only reason he feared harm in PNG related to his dispute with [Mr L]’s tribe for their compensation claim over [Mr L]’s death and that there were no other reasons for the applicants to fear harm in PNG.

13. The applicant clarified, updated and confirmed details regarding his family, employment and residential history. His oral evidence at the hearing, where relevant, is discussed in detail below under ‘Assessment of the claims.’

14. After the hearing, the applicant submitted a copy of ‘Certificate of Registration of Business Name’ dated [September] 2011 from the Papua New Guinea Registrar of Companies. The certificate states that the business name [was] registered [in] September 2008, expiring [in] September 2014. It does not state the owner of the registration, specifically whether the applicant is the holder of the registration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for protection visa

15. 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.

16. 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.

17. 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).

18. 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-5LA, which are extracted in the attachment to this decision.

19. 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.

    Mandatory considerations

20. 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.

    REASONS AND FINDINGS

21. The issue in this case is whether the applicants meet the criteria for a protection visa under s 36(2) of the Act. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    Receiving country

22. The applicants claim that they are citizens of Papua New Guinea and that they do not have rights to enter and reside in any other countries. They have provided copies of their Papua New Guinean passport biopages to the Department and the Tribunal, which contain consistent information about their identity and background. Based on the information before me, I accept that the applicants are citizens of Papua New Guinea and that Papua New Guinea is the receiving country for the purpose of assessing their claims.

    Preliminary matters

    Reasonable opportunity to present case

23. At the commencement of the hearing, I explained to the applicant my reasons for proceeding with the hearing without postponement and the measures available to accommodate him throughout the hearing. I stressed the importance of his oral evidence at the hearing given the passage of time and limited documentary evidence available before the Tribunal, and that it was also his responsibility to provide all relevant information in support of his claim and to assist the Tribunal to progress his case. He was reminded that he can freely shift positions as necessary and ask for breaks whenever he required, and if it becomes too painful for him to continue we can adjourn to another day. His wife was also permitted to be present in her capacity as a support person to assist his mobility needs only, given their confirmation that she was not giving any evidence in relation to their application.

24. The applicant confirmed that he was feeling well to proceed with the video hearing. We took short adjournments of 5-10 minutes every 45-60 minutes to allow the applicant to stretch his legs and move. After every break, the applicant confirmed that he was well and ready to continue. The applicant shifted his seating position from time to time during the hearing, but I did not observe any obvious signs of pain, nor did the applicant complain of pain or discomfort. He responded to my questions mostly without hesitation in fluent English and I did not observe any obvious difficulties in his communication or participation at the hearing.

25. I also acknowledged to the applicant at the commencement of the hearing that he may feel nervous and stressed about giving evidence. I explained that this hearing was an opportunity for him to explain his circumstances so that I can better understand his reasons for fearing returning to PNG. The applicant confirmed that he understood and that he was happy to proceed.

26. Accordingly, I am satisfied that the applicant was given a reasonable opportunity to present his evidence at a hearing.

    The applicant’s protection claim and support letters

27. Although the delegate considered that [Mr C] and [Mr D] had claims of their own, being that they were targeted by [Mr L]’s family or tribe as adult sons of the applicant, the applicant at the hearing confirmed that he was the main applicant with the claims and his family members were all applying as dependent family members who do not have independent claims. I note that the claims considered by the delegate to be independent to [Mr C] and [Mr D] stem from the applicant’s claim that he and his family were targeted by [Mr L]’s family or tribe. I do not consider they are not standalone claims but they are intrinsically dependent on the applicant’s claim and evidence regarding his dispute with [Mr L]’s tribe. This is further supported by the applicant’s confirmation that he was giving evidence on behalf of all of this family member applicants and that his adults sons were not attending the hearing. 

28. Accordingly, I accept the applicant’s evidence that his family members do not have their own claims but are reliant on the applicant’s claims for protection as well as his evidence given on behalf of all the of the applicants.

29. I also discussed with the applicant at the commencement of the hearing the various reference letters he provided as evidence to the Tribunal. I acknowledged that these referees support and recommend the applicant and his family’s valuable contribution to the Australian community through their work, study and achievements in sport. I explained, however, that such character references do not appear to be relevant to the legal assessment of whether the applicants meet the refugee and complementary protection criteria. The applicant agreed and confirmed that they were general character reference letters from the members of his local community in [Town 1].

1. I note that while the Vicar opines the applicant’s fear of payback in PNG is genuine, it appears to be his personal opinion only and he states that he is ‘in no position to question some of the findings’ in the delegate’s decision. There are also no specific references to the applicant’s protection claims or experiences of past harm in his letters, which suggest that he may not have detailed knowledge of the applicant’s protection claims. Similarly, it appears from [a named person’s] letter stating that the applicants’ lives were threatened due to the applicant challenging the corruption in his country while working as a [Occupation 1], which has never been raised by the applicant personally, that she does not have an accurate or detailed knowledge of the applicant’s protection claims. Accordingly, while I have considered these letters, I accept the applicant’s concession that they only provide character references for the applicant and his family in relation to their integration and excellent contribution to the [Town 1] community and I find that the letters do not corroborate the applicant’s protection claims, contain any relevant evidence to my assessment of whether the applicants engage Australia’s protection obligations, nor raise any claims on his behalf relevant to that assessment. In these circumstances, I do not consider it necessary to hear from the applicant’s referees.

2. In relation to his medical condition, the applicant explained that his post-surgery recovery has been good and that he will be back to work with reduced hours from Monday (1^st week of November as at the date of the hearing). He is not on any medication and his current treatment only involves physiotherapy and exercise physiology every 2 weeks and monthly GP check-in. He is due for a review with the surgeon in early 2025. This evidence appears to be consistent with the surgeon’s notes in July 2024 that the applicant is recommended to gradually get back to all his activities without any particular restriction. I also note the applicant’s evidence at the hearing that he had a similar surgery in 2010, after which ‘it was fixed’, he was playing [sport] and living a normal life, and that the 2024 surgery was not for a recurring condition but rather he had a workplace injury at the [workplace] in 2020 and had to have a similar surgery. 

3. The applicant did not claim that he requires special medical treatment that would be unavailable in PNG nor that he will be unable to work because of his injury. The information before the Tribunal including his own evidence indicates that he is recovering well and gradually returning to normal life including work. Although Dr [A’s] brief letter of 23 December 2022 refers to the applicant’s ‘severe anxiety and subsequently hypertension’ due to the uncertainty of the applicant’s situation, there is no supporting or updated information in relation to these generally referenced conditions, and critically, the applicant has not claimed any fear of harm in PNG on this basis. Accordingly, I am not satisfied that any claim for the assessment of protection obligation clearly arise on the available material in relation to the applicant’s past or current medical condition.  

4. As noted above, the applicant confirmed that the only reason he feared harm for himself and his family on return to PNG was his fear of the continuous threats and harm from [Mr L]’s family and tribe in relation to their claim for compensation over [Mr L]’s death in 2011. I note that at the delegate’s interview, the applicant confirmed that no tribal conflict arose from the 2017 death of his cousin and that he did not fear returning to PNG for this reason. I accept this evidence and find that no claim for the assessment of protection obligation arise in relation to this incident.

   Assessment of the claims

5. In assessing the applicants’ claims, I have had regard to AAT’s Guidelines on the Assessment of Credibility and the relevant legal authorities. If the Tribunal is unable to make a confident finding that an applicant’s account is credible, it must assess the claim on the basis that it is possible, although not certain, that the applicant’s account is true.[1] However, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant. Further, the Tribunal does not need rebutting evidence before it can find that a particular factual assertion by an applicant is not made out.[2]

   [1] MIEA v Guo (1997) 191 CLR 559; Rajasundaram v MIMA (1999) 51 ALD 682; MIMA v Rajalingam (1999) 93 FCR 220.

   [2] Selvadurai v MIEA (1994) 34 ALD 347 at 348.

6. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear, or that it is for the reason claimed, or that it is well-founded. It remains for the applicant to provide the relevant information in their case in as much detail as is necessary to enable the Tribunal to establish the relevant facts and be satisfied that all of the statutory elements for well-founded fear of persecution or complementary protection are made out.[3] It is the applicant’s responsibility to specify all particulars of their claim to be owed protection and to provide sufficient evidence to establish the claim, and the Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.

   [3] MIEA v Guo (1997) 191 CLR 559; Nagalingam v MILGEA (1992) 38 FCR 91; Prasad v MIEA (1985) 6 FCR 155.

7. As discussed above, the Tribunal adjusted the hearing to accommodate the applicant’s personal circumstances and I am satisfied that he was given a reasonable opportunity to present his evidence at a hearing. In this regard, I also considered the applicant’s lack of familiarity with the Tribunal procedures as a self-represented applicant and memory recall issues due to the passage of time since the claimed events occurred. Particularly having regard to the significant passage of time in this case, I do not consider minor inconsistencies relating to dates of events or minor changes and omissions between written evidence and oral evidence would on their own undermine the credibility of the applicant’s claims.

8. I found the applicant to be mostly forthcoming in giving evidence at the hearing, particularly in relation to the details regarding his family in Australia. I accept the applicants’ background set out above at [15]-[21].

9. His evidence regarding the critical core aspects of his claims for protection, however, was vague and inconsistent. Similar concerns were already raised by the delegate in their detailed decision record. The concerns and deficiencies in the applicant’s evidence, when considered cumulatively take on more significance and raise doubts about the credibility of the applicant’s claims.

   Claim in relation to the 2011 incident

10. Although there were some differences in his evidence about the car hire business, I accept the following:

    a)He started the business [from] around 2010 in [Village 1] village, but it wasn’t an established business with an office or a shopfront. He operated the rental business by giving his number to people and they would call him to rent the car. As it was risky to give the car to anyone, he only dealt with people he knew and by referrals from people he knew. He started with one car, then bought 2 more cars. One car was written off after the 2011 incident.

    b)The car was bought under the family name so the applicant considered his wife to be involved in the business. However, she was still [working] at the time and he was running the business mostly on his own.

    c)The applicant knew [Mr L] through church work. [Mr L] was one of the church members of a pastor the applicant knew and the pastor referred [Mr L] to rent the car from the applicant. Because of the pastor, the applicant trusted [Mr L].

11. The applicant maintained that he knew nothing about [Mr L] other than that he came from [Enga] province ‘which is different altogether.’ Given his claim that [Mr L]’s family and tribe continuously threatened and attacked the applicant and his family from 2011 to 2017, considered in light of his additional evidence at the hearing that he only hired his car to people he knew and that [Mr L] was referred to him by a pastor known to him, it was strange that the applicant could not identify [Mr L]’s tribe. His lack of this knowledge is stranger in the context of his repeated references to [Mr L]’s people as ‘members of [Mr L]’s tribe’ and the characterisation of this issue in the 2018 Statement as a conflict between families and tribal groups. It is also strange that despite the persistent threats from these people, the applicant did not seek to find out more about them including their tribe.  

12. Further, the applicant’s evidence regarding the availability of the police report about the 2011 incident was inconsistent. He had claimed to the delegate that it was burnt in the 2012 house fire and that’s why he couldn’t provide it. At the hearing, when asked why he couldn’t get a historical copy from the police directly, he claimed initially that he ‘heard the police has it’ but he couldn’t get it because a long time has passed and it’s hard to get through the system in PNG. I asked whether he has asked his brother in PNG to get it for him given it is important evidence supporting his claim. The applicant agreed that it was a very important document and claimed that his brother [Mr K] ‘tried a few times but couldn’t get a hold of it.’ He added that if there was a proper filing system in the PNG police, it would be easy to get the report but the PNG police didn’t have a proper computing system, everything is manual and even 2 years is too long for keeping paper files in their filing system.

13. I consider it plausible that the PNG police may not have a proper filing system to maintain a paper file from 2011. Country information indicates that the Royal Papua New Guinea Constabulary (RPNGC) is severely limited by resource and staffing constraints.[4] Accordingly, I find it likely that a police report from 2011 may be difficult to obtain. However, I am not convinced that the applicant made efforts to obtain the report based on his vague and changing evidence about the availability of the police report and claimed efforts.

    [4] DFAT Country Information Report – Papua New Guinea, 6 September 2022, at [5.5].

14. Despite the lack of corroborating material, I acknowledge that the applicant has consistently claimed [Mr L] died in an accident involving the applicant’s rental car, the police investigated the matter and found it was not the car or the applicant’s fault and the car was written off. As his evidence has been reasonably detailed and consistent about this accident, I accept that it occurred in 2011 and the police concluded that the car did not contribute to the accident causing [Mr L]’s death.

15. The applicant claimed that after the 2011 incident, [Mr L]’s family came to him and demanded compensation for 300,000 kina. He claimed that [Mr L] was a gold buyer and the breadwinner in the community and that’s how much the community wanted for his death. The applicant told [Mr L]’s family that he wasn’t going to pay the compensation because the car was brand new, [Mr L] was the first to take the car out and the police found that the car didn’t cause the problem. He claimed that when he insisted he wouldn’t pay, [Mr L]’s family threatened him by saying they will take his life as [Mr L]’s life was taken.

16. I have concerns about the credibility of the applicant’s claim that he and his family were threatened and attacked by [Mr L]’s family and tribe from 2011 until they left PNG in 2017. For the following reasons, I am not satisfied that the applicant and his family experienced threats and harm from [Mr L]’s family and tribe in PNG as claimed and that they left PNG in fear of harm from [Mr L]’s family and tribe.

17. First, the applicant’s evidence about the claimed threats and attacks from 2011 to 2017 was vague, speculative and aspects of the claimed events were implausible.

18. At the hearing, I asked him about the claim in his 2018 Statement that [Mr L]’s family and tribe came to his village home around every 4-5 months to threaten him from 2011. The applicant did not give a straight answer and claimed that it was not just in his village but whenever [Mr L]’s people saw him in [City 1] town, they would threaten him. His village was not far from [City 1] town, [a named town] was also not far from [City 1] and people from there commuted daily. He felt threatened in town, so he feared going into town. I asked again whether [Mr L]’s people came to his home in the village to threaten and the applicant gave a vague response that he thought in 2012 they came once to his home and threatened, but he wasn’t there, [Mr C] was home. Even taking into account memory recall problems due to passage of time, I found his responses extremely vague and lacking in detail reasonably expected of a person speaking of their own experiences. The evidence at the hearing that [Mr L]’s people came in 2012 once to his village home was also inconsistent with his previous claim that they came to their home repeatedly ‘on and off’ to demand for compensation and threaten to kill them.

19. While the applicant consistently maintained his claim about the 2012 house fire, the 2013 letter of demand and the subsequent gang attack, and the 2017 threat to [Mr C], his evidence about these critical events that allegedly caused him and his family to fear for their lives was vague and general.

20. In relation to the 2012 house fire, he confirmed at the hearing that he didn’t know who caused the fire and no one could establish the cause of the fire. He claimed that his neighbours thought that it could be [Mr L]’s people because no one else would set his house on fire and the applicant’s family never had any trouble with anyone before. I find his evidence about the involvement of [Mr L]’s family or tribe in this incident speculative. It is clear from his own evidence that he himself was speculating that it may have been [Mr L]’s people but he was not certain and to date he still didn’t know the cause of the fire.

21. His evidence about the 2013 letter of demand was also vague. He claimed that it was a compensation demand for [Mr L]’s death so he assumed it was from [Mr L]’s people as no one else wanted money from him. He did not provide any more specific information about the letter or how he received it. He maintained that he couldn’t provide a copy of the letter because it’s been a long time and he didn’t know where he placed it. His highly generalised evidence in this regard including that he ‘assumed it was them’ causes me to doubt whether he in fact received any such letter.

22. Regarding the 2013 attack by 10 men in [City 1], the applicant gave the following account at the hearing: he was walking down the street when 10 people approached him; they said you are not answering our letter of demand and attacked him; he ran away with the help of 4 men from his village who were with him; he escaped to his village and no one came to the village to harass him or his family after the town incident. He did not elaborate on the attack at the hearing, for example about being stabbed in a physical fight as he claimed in his 2018 Statement or that they were in a brawl and a crowd came to assist as claimed in the interview with the delegate. His evidence that he escaped to his village was also different to his claim in his 2018 Statement that he left [City 1] after the incident. In the 2018 Statement he claimed that he went to Lae for about a month, then to Port Moresby for another couple of months, and returned to his village in around June/July 2013. Whilst I acknowledge that a significant time has passed, I consider details such as being stabbed in a brawl, escaping with the assistance of a crowd and relocating to other cities immediately after being attacked are important and memorable matters that would reasonably be expected to be disclosed by the applicant without extensive probing or prompting. His vague evidence at the hearing omitting these details casts doubt on the credibility of his claimed gang attack in [City 1].

23. The credibility of this gang attack is also doubtful in light of the applicant’s evidence that he and his family were not harassed in his village after this incident. The applicant’s evidence indicates that [Mr L]’s people knew where he lived (by sending the letter of demand and coming to their home to threaten) and the applicant and his family did not move even after the 2012 fire allegedly caused by [Mr L]’s people. Given this, I consider it implausible that [Mr L]’s people would not attempt to harass or harm the applicant at his home if they intended to kill him and attacked him in town as the applicant claims. The applicant’s frank evidence that no one came to the village to harass or harm, in my view, contradicts his claim that [Mr L]’s people continued to threaten him and his family and that they feared harm in PNG for this reason.

24. I asked about the 2014 confrontation in [City 1] and the applicant vaguely repeated that [Mr L]’s tribe demanded compensation and confronted him about the letter. He claimed that he told them he can’t do anything because he couldn’t afford the large amount and they tried to attack him. He claimed he ran away but did not specify how or to where. According to his own vague evidence, he had had since 2011 repeated threats to kill and at least 1 serious attack directly against him involving physical violence and narrow escape from harm. It concerned me that his evidence about these events remained very vague and devoid of specific personal details to convince me that he was speaking of his own lived experiences. It is also implausible that despite these constant threats to and fear for their lives, the applicant and his family continued to live in the same home, in the same village until late 2017 and were also able to freely travel to Australia for holidays during this time. 

25. Secondly, the applicant’s evidence about his family’s travel to Australia in October-November 2017 was internally inconsistent casting serious doubt whether they fled PNG in fear from [Mr L]’s family/tribe as claimed.

26. At the hearing, the applicant confirmed as correct the following travel dates to Australia:

    ·All applicants except [Mr C] arrived in Australia on [date] October 2017;

    ·[Mr C] arrived by himself on [date] November 2017;

    ·The applicant returned to PNG alone on [date] November 2017 and last arrived in Australia on [date] January 2018.

27. When asked why [Mr C] arrived later by himself, the applicant claimed that he was studying at university in Lae and he was still in class when the family travelled first on [date] October 2017. They thought he would finish the semester and join them in Australia, but he ended up coming before the semester ended because of the threat he received.

28. However, later when asked specifically about the 2017 threat, his evidence was inconsistent. He claimed that [Mr C] received the threat in early October 2017. When asked specifically whether it was before or after the family came to Australia, he stated that ‘the family came first, then [Mr C] was threatened and he came down.’ I raised with the applicant that this timing appeared inconsistent with his written claim (in both 2018 and 2019 Statements) that it was after [Mr C] was threatened in Lae that he decided ‘that was enough’, it was clear his family was not safe anywhere in PNG and made the decision to ‘flee PNG to Australia with the whole family.’ In response, he claimed that he couldn’t buy all the tickets (flights) together because [Mr C] was in Lae and that’s why it was not possible for them to all come together and they had to come early. He repeated that they came earlier than [Mr C] because he was in Lae. His repetitive responses did not address the concern. It also seemed implausible that the applicant would move the whole family first to Australia, leaving [Mr C] by himself in Lae when he appeared to be the one who was threatened and at most risk at the time, according to the applicant’s claim.

1. At this point, it was audible that the fourth named applicant who was permitted to attend only as a support person was speaking to the applicant in their language and I warned her not to confer evidence with the applicant and reminded her that she was not present to give evidence for the applicant. The applicant then requested a break, which was granted.

2. After the short adjournment, the applicant immediately requested to explain again the circumstances regarding the family’s travel to Australia. His evidence that followed, however, was repetitive and unclear. He vaguely claimed that he was under threat many times and when [Mr C] was confronted at university, he was worried that they will do terrible things to his sons and he decided to come down to Australia seeking refuge. He did not squarely address the concern about the inconsistent timing of the incident that allegedly led him to finally decide to flee to Australia with the whole family. He then repeated that when [Mr C] was confronted ‘back in 2017’, the family came down, and that they thought [Mr C] would complete his studies and they told him they’ll go first and find a way for him to join them. These vague responses still did not clarify whether his decision to relocate his whole family was before or after the alleged threat against [Mr C] and did not explain why [Mr C] was left behind alone if he was at risk of harm. It was only after my repeated direct questions asking him whether he was now changing his evidence to say that [Mr C] was threatened before he flew with the family in late October 2017, he agreed that he was changing his evidence and that he was now claiming that they came to Australia when [Mr C] was threatened.

3. He then claimed that [Mr C] was in Port Moresby with some family friends while the applicants were arranging for [Mr C]’s way to come down to Australia. This was inconsistent with his earlier evidence that [Mr C] was in Lae completing his semester.

4. The applicant reasoned that he was getting himself mixed up and confused because it has been a while since he had the interview with the Department. I again acknowledge the passage of time, but I am not convinced by his explanation. I understand he may be unable to recall the exact date of the claimed incident and I was not asking for it. I was also not testing his oral evidence at the interview but referring to his written claims in his 2018 and 2019 Statements. I acknowledge that the applicant did not personally experience the claimed 2017 incident against [Mr C] and as such, I was not asking him about the details of what happened to [Mr C], but whether the incident occurred before or after he and the rest of the family came to Australia leaving [Mr C] behind. Given his claim that the 2017 threat against [Mr C] was the final incident that led the applicant to the decision to move his entire family to Australia for safety, it appeared to be a very significant event. I am not convinced he would be confused about such an important incident occurring before or after the family’s travel to Australia, simply due to passage of time. I am also concerned that his evidence changed after the adjournment, prior to which I could clearly hear his wife speaking to him. His internally inconsistent evidence about [Mr C]’s whereabouts also suggests that he contrived this response to fit his changed narrative.

5. I have considered [Mr C] and [Mr D]’s evidence to the delegate at the interview in relation to this incident. Their general evidence was that after the 2017 incident in Lae, the family decided to move to Australia. However, I give limited weight to this corroborative evidence given their generality and in light of the applicant’s own significantly inconsistent and changing evidence about the timing of the 2017 incident. Having regard to these concerns, I have serious doubts about his claims regarding the 2017 threat against [Mr C] including that it was the impetus for his decision to seek protection in Australia with his whole family.

6. In relation to his return to PNG from [date] November 2017 to [date] January 2018, the applicant maintained that it was to sell his cars and aspects of his evidence in this regard was also internally inconsistent. At the hearing, he claimed that he returned to stay with some friends in Port Moresby and after a few weeks went to Lae, then to his village in [City 1]. He then immediately changed his evidence and claimed that he didn’t go back to his village and he stayed with people he knew in Lae. He claimed that he called his brother from Lae and was told the situation wasn’t good, so he came back to Australia from Lae. He claimed that he didn’t do anything in Port Moresby. He returned to PNG because he didn’t want to leave the cars in someone else’s hands as they could get the wrong price. In the end, the situation didn’t allow him to sell the cars himself, so he asked his brother [Mr K] to sell them. He claimed that he sent money to [Mr K] in 2018 from Australia to thank him for doing a favour and stressed that was the only time he sent money from Australia.

7. I consider it implausible that the applicant would return to PNG and stay there for about 2 months, simply to sell his cars himself because he was worried about getting the wrong price, as such conduct appears to be inconsistent with his claimed fear of harm in PNG and that he fled PNG for safety. If he was concerned for his safety in PNG, it is also strange that he stayed for almost 2 months, which in my view is quite a long period for a person claiming to fear harm in the country, while doing ‘nothing in Port Moresby’ where he stayed for ‘a couple of weeks’ and that he only called his brother from Lae when he could have contacted him in Port Moresby or made arrangements to sell his cars as soon as possible to return to safety in Australia. It is also implausible that he would send money to his brother to thank him for selling his cars, when he could have simply told his brother to keep the proceeds of the sale. His evidence that he stayed with friends or ‘people he knew’ in Port Moresby and Lae is also inconsistent with his claim in the 2018 Statement that he cannot move to another city in PNG because he has no connections there.

8. Further, he had claimed in the 2019 Statement that his car rental business ‘came to a stop when the accident happened’ (in 2011), but at the hearing he claimed that he didn’t close the business and it was in operation until he came to Australia. This evidence at the hearing also appears to be inconsistent with his 2018 Statement that it was impossible for him to earn a living to support his family. Given his evidence that he returned to PNG to sell his cars, I consider it more plausible that he continued to operate the car hire business until he came to Australia. This suggests that the applicant was able to continue working and carrying on with his life, which in my view contradicts his claimed continuous threats from [Mr L]’s people throughout this period. Further, the inconsistent evidence raises doubts about the applicant’s reliability as a witness and the credibility of his claimed harm in PNG.

9. Thirdly, I am not convinced by the applicant’s explanation regarding the lack of corroborating evidence in support of the claimed harm in PNG.

10. I have already found above that while I consider plausible that it may be difficult to obtain the 2011 police report from the RPNGC, I do not accept the applicant made efforts to obtain it.

11. When the lack of corroborating evidence was raised as a concern at the hearing, the applicant claimed that he had a business name registration document which he asked his friend to obtain from the bank. As set out above, a copy of ‘Certificate of Registration of Business Name’ dated [September] 2011 was submitted after the hearing. The document does not specify the owner of the registration or the location of the business, but I am willing to accept that this document supports the applicant’s claim that he operated a car hire business named [name] from his village.

12. However, it is concerning that he had previously claimed to the delegate that he did not register the business as there was no need to do so in PNG and he did not have any documents to support his claim to have operated the business because they were all burnt in the 2012 house fire. I am willing to accept that he remembered this registration recently and was able to obtain a copy of the historical record. However, the fact that he was able to obtain this document dated 2011 through a friend in PNG, in my view, indicates that he would be able to obtain other historical documents to support his claim, such as the police report and purchase and sale of the cars, or provide a more detailed convincing explanation about the efforts he made to obtain such documents.

13. I acknowledge that the lack of corroborating evidence on its own would not undermine the applicant’s claims. However, when considered together with the applicant’s vague, inconsistent and unpersuasive evidence detailed above, I find the lack of supporting evidence and his inability to provide a convincing explanation for its unavailability add to my concerns about the credibility of his claimed harm in PNG.  

14. Fourthly, I find the applicant’s claim that he doesn’t know [Mr L]’s tribe and that his tribe was not involved in the claimed dispute implausible in the context of his own evidence and country information.

15. I have already expressed my concerns about the applicant’s inability to identify [Mr L]’s tribe, particularly given his evidence that he ‘knew’ [Mr L] through a pastor, there was a police investigation into [Mr L]’s accident and the applicant previously had that report, he received a letter of demand from [Mr L]’s tribe, and [Mr L]’s family and tribe continuously threatened and attacked the applicant between 2011 and 2017. I consider it implausible that the applicant would not at least be curious as to [Mr L]’s tribal identity to find out about it if he was persistently confronted and threatened by [Mr L]’s family and tribe for over 6 years. It would appear that he could find out through the pastor who referred [Mr L] or from the police. In my view, the applicant’s obliviousness to the tribal identity of his claimed persecutors does not support his claim to have been harmed by them or that he genuinely fears these people.

16. His insistence that his community or tribe was not involved, or he did not involve them, is inherently contradictory for a number of reasons. In his evidence before the Department, he himself characterised his conflict with [Mr L]’s tribe as a tribal dispute and he claimed in his 2018 Statement that he believed he was safe in his village because other members of his tribe would protect him if he was attacked there. He also claimed that his neighbours in the village community were the ones who speculated [Mr L]’s tribe caused the 2012 fire at his home, and that 3 or 4 other men from his village were involved in the brawl with 10 men from [Mr L]’s tribe in [City 1]. At the hearing, he claimed that his community accommodated and helped his family after the 2012 fire as this is what they do for each other in the community. The applicants lived with their neighbours until they rebuilt their home where the applicant’s mother currently lives. The applicant’s own evidence strongly suggested that his community or tribe in the village were clearly aware of his claimed ongoing dispute with [Mr L]’s tribe over 6 years and to an extent already involved through the 2013 brawl and helping the applicants in time of need after the 2012 fire. Considering this, the applicant’s repetitive claim that the problem was between him and [Mr L] and that he didn’t escalate it to the community level because if he did there will be more deaths appeared to be no more than a general assertion. He also claimed that for [Mr L]’s people, it was a tribal issue but he took it as a personal issue, which seemed to be inconsistent with the country information.

17. According to the PNG traditional tribal custom of wantokism, members of a tribe are viewed as a collective group who are mutually obligated to protect each other, and the overall welfare of the tribe and its members is paramount. As such, when a member of an individual’s tribal group is ‘wronged’, fellow members of the tribe are obligated to join any act of retaliation against the rival tribal group in the custom of revenge or ‘payback’.[5] Women, elderly and children are not exempt from tribal violence.[6] In light of this information, it was difficult to accept the applicant’s claim that his family and community or tribe were not involved in retaliating against the ‘wrongs’ against him including the house fire and the group attack, and also the claim that his wife was not harmed because she was a woman.

    [5] DFAT Country Information Report – Papua New Guinea, 6 September 2022, p.4; ‘Briefing Note No.2 Drivers of crime and violence in Papua New Guinea’, Lakhani S & Willman A M, World Bank, Social Cohesion and Violence Prevention Team, Social Development Department, 30 November 2012, pp.11-12; ‘BTI 2018 Country Report Papua New Guinea’, Bertelsmann Stiftung, p12; ‘Papua New Guinea – Tribes’, Global Security Organisation, 2013; ‘Can Wantok Networks be Counter-publics? Development and Public Space in Urban Papua New Guinea’, Kumagai L, Annals of Ochanomizu Geographical Society, Vol 55, 30 June 2016, pp.49-58 at 51.

    [6] ‘Papua New Guinea massacre of 30 women and children is 'worst payback killing' in country's history', Luke Henriques-Gomes, The Guardian, 15 July 2019; DFAT Country Information Report – Papua New Guinea, 6 September 2022, [2.29].

18. The applicant agreed with the country information and that he understood the context of my concern. However, he repeated that there are consequences to involving the whole community and he will get the blame for those who died and the bad things that happened. The response did not squarely address the concern that it seemed implausible his community or tribe was not already involved in this lengthy ongoing dispute with another tribe who according to his own evidence saw this as a tribal issue. The applicant maintained that it was his problem and he had the burden of compensation, and that he didn’t want the tribe to be involved in it.

100.   I also discussed with the applicant that country information[7] indicates inter-tribal violence is traditionally governed by local customary laws, and ‘payback’ can be remedied through the payment of financial compensation to the victim’s family. Village courts play a vital role in these circumstances, particularly for dispute resolution within and between communities. Tribal disputes are often brought before village courts, rather than higher level courts. Generally, a cash payment is offered as compensation to resolve the dispute, but if communities are not satisfied with the financial compensation offered, it may give rise to renewed fighting. The applicant responded that there was no mediation or the involvement of the village court or anything like that, and repeated that he did not involve his tribe.

[7] DFAT Country Information Report – Papua New Guinea, 6 September 2022, p.4, [5.8]-[5.10].

101.   I am not satisfied that the applicant has provided a convincing explanation to support his claim that his tribe was not involved in his dispute with [Mr L]’s tribe. As set out above, his evidence in this regard was vague, repetitive and inconsistent with the country information which he agreed was correct. I am not convinced that if the applicant was threatened and attacked over 6 years and his family was also at risk of harm and threats from [Mr L]’s family and tribe, the applicant’s own community and tribe would not have sought to protect them or tried to mediate to resolve the dispute. I consider the applicant’s inability to give any details about his community’s efforts to assist him and the general insistence that he did not involve his community are inconsistent with the country information and his own evidence that the community helped out when the applicants lost their home in 2012.    

102.   Having regard to all of the concerns detailed above cumulatively, I do not accept that the applicants left PNG for the reasons they claim. While I accept that [Mr L] was killed in an accident involving the applicant’s hire car in 2011, I do not accept that [Mr L]’s family or tribe threatened, harassed, attacked or harmed the applicant or his family in any way between 2011 and 2017 seeking compensation for [Mr L]’s death. Based on his vague and inconsistent evidence, I do not accept that the applicant or his family were threatened in their home in the village, nor confronted, threatened and attacked in [City 1] town at any time including in 2013 and 2014. I am willing to accept that his house in the village was burnt in a fire in 2012, but I do not accept it was caused by [Mr L]’s family or tribe nor that it had anything to do with his claimed dispute with [Mr L]’s family/tribe. As discussed above, the applicant’s evidence about this was speculative and uncertain. I also do not accept he received a letter of demand from [Mr L]’s family or tribe in 2013 based on his vague evidence, and I find that he is unable to provide a copy because he never received such a letter.

103.   Based on the applicant’s inconsistent and changing evidence, I do not accept that [Mr C] was threatened in Lae in October 2017 which led to the applicant’s decision to flee to Australia with his whole family. I also find the applicant’s return to PNG for almost 2 months in November 2017 – January 2018 contradicts his claim to have fled PNG in fear of harm from [Mr L]’s family/tribe.

104.   In light of these findings of fact, I find that the applicant has fabricated his claimed past incidents of harm from [Mr L]’s family/tribe against himself and his family members to facilitate the family’s protection visa application. Accordingly, I am not satisfied that the applicants experienced any harm in PNG in relation to this claim nor that they left PNG for the reason they claim. It follows that I am not satisfied the applicants genuinely fear any harm in PNG in relation to this claim. I am not satisfied that there is a real chance the applicants will be harmed in any way by [Mr L]’s family and/or tribe if they return to PNG now or in the reasonably foreseeable future.

General security and safety in Papua New Guinea

105.   In his 2024 Statement, the applicant generally referred to the law and order being of great concern in PNG and that most problems are caused by the elected leaders who want to stay in power. He has not claimed before the Department and did not claim to date to the Tribunal that he holds any political opinion or that he has expressed such opinion in any way. Therefore, I do not consider any claim on the basis of political opinion arises on the available material before the Tribunal.

106.   At the hearing, the applicant repeated his general reference to law and order in PNG being a very big issue. He claimed that it is a fearful environment especially for his children who have adapted to the Australian society and they don’t know what it’s like to live in fear. He repeated that going back to PNG is bad for his children who are doing really well at school and sports in Australia, are comfortable here, have reasons to dream and move on with life in Australia and can see a future here. When asked specifically about the ‘fear’ he is referring to, he vaguely responded it’s the fear he ran away from and the general law and order situation in PNG.

107.   I consider the applicant’s evidence in this regard to be too vague and highly generalised, and importantly the applicant himself has not clearly articulated how or whether he and his family personally may be harmed in PNG on this basis. In fact, he had repeatedly confirmed throughout the hearing that the only basis for his fear of harm in PNG related to his dispute with [Mr L]’s family/tribe, which I have rejected above.

108.   I acknowledge that the general security situation in PNG is less than favourable, as country information indicates that violent and petty crimes are common and police response is usually inadequate.[8] However, the applicant did not explain or articulate how he and his family would be specifically harmed or targeted for harm because of the country’s general security situation. Apart from his claimed dispute with [Mr L]’s tribe (which I do not accept), the applicant did not articulate any reason or particular circumstances why he and his family would personally be at risk of serious or significant harm in relation to the general country situation in PNG. Therefore, I am not satisfied that the applicant’s generic references to the law and order concerns and living in fear in PNG give rise to any separate or clearly articulated claim. In any event, on the available information before the Tribunal about this generic concern raised by the applicant, I am not satisfied that the applicants will face a real chance of serious harm or a real risk of significant harm for this reason if they were to return to PNG now or in the reasonably foreseeable future.

109.   In the context of the totality of the evidence stressing his children’s excellent adjustment and achievements in Australia and the opportunities for progress available here, I consider that the applicant has made these vague and general references to the ‘law and order’ and ‘fear’ in PNG to express his preference for his family to continue to live and thrive in Australia. However, the applicants’ preference to remain in Australia because they have established themselves here does not provide a basis for the Tribunal to be satisfied that the applicants face a real chance of serious harm or a real risk of significant harm on return to PNG.

110.   Accordingly, I am not satisfied that there is a real chance the applicants will face serious harm or significant harm for this reason if they return to PNG now or in the reasonably foreseeable future.

[8] DFAT Country Information Report – Papua New Guinea, 6 September 2022, [2.26].

Conclusions

111.   In view of the findings and reasons given above, I am not satisfied that if the applicants return to Papua New Guinea now or in the reasonably foreseeable future, they face a real chance of serious harm for the claimed reasons or any other reasons set out in s 5J(1)(a) of the Act. Therefore, I find that the applicants do not have a well-founded fear of persecution and are not refugees as defined in s 5H of the Act. The applicants are not persons in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I have found above that there is no real chance of the applicants being harmed in Papua New Guinea in the reasonably foreseeable future. As the ‘real risk’ test for the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[9] for the same reasons and findings set out above, I find that the applicants do not face a real risk of significant harm for any reason. Accordingly, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Papua New Guinea, there is a real risk that they will suffer significant harm. The applicants do not satisfy the criterion in s 36(2)(aa).

   [9] MIAC v SZQRB (2013) 210 FCR 505.

2. For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   Minister’s discretion to substitute a more favourable decision

114.   As outlined above under ‘Evidence before the Tribunal’, the applicants have provided various character reference letters from their community referees who have expressed their support for the applicants as valuable, worthy, beloved and upstanding members of the [Town 1] community and that the community wishes for the applicants’ continued residence in Australia. I am sympathetic to the applicants’ circumstances, particularly given the length of the whole family’s residence in Australia during which the young children appear to have integrated well into the community and to be excelling in sport and school. 

115.   I note that under s 351 of the Act, the Minister has a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so. It is open to the applicants to make a request to the Minister to exercise this discretion in accordance with the relevant considerations in the Departmental policy ‘Minister’s guidelines on ministerial powers’, and they may wish to highlight their contribution to the [Town 1] community.

DECISION

116.   The Tribunal affirms the decisions under review.

Date of hearing: 31 October 2024

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.

…