2003875 (Refugee)

2003875 (Refugee) [2021] AATA 3222 (23 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2003875

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Jane Marquard
DATE:23 June 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 June 2021 at 8:25am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – political opinion – campaign manager – electoral violence – race – tribal violence – payback – applicant’s house burnt down – fight at polling station – fear of killing – return visits to home region – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 116, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
OVERVIEW

The applicant is [an age]-year old man from [Town 1], [Province 1], Papua New Guinea (PNG).
He first arrived in Australia [in] December 2012 on a [tourist] visa, departing [in] January 2013. He entered and exited Australia on a number of tourist visas between 2013 and 2016. His most recent arrival in Australia was [in] July 2016 on a ]visitor] visa.
He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 21 October 2016 and was granted a bridging visa. This bridging visa was cancelled under s.116 of the Act on 3 November 2017 due to criminal charges. The applicant was convicted [in] November 2019 of [an offence] relating to a victim with cognitive impairment. He was sentenced to [a period of] imprisonment and was eligible for parole [in] January 2021. He is currently in immigration detention.
A delegate of the Minister for Home Affairs refused to grant the protection visa on 12 February 2020. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Prior to his conviction and detention, the applicant was caring for an elderly couple in Queensland, Mr and [Mrs A], who treat him like a son. They both have health issues. In the case of [Mrs A], she has a serious illness: [Condition 1]. Multiple medical reports have been provided to demonstrate the seriousness of her conditions. [Mr and Mrs A] desire that the applicant remain in Australia to help care for them and they clearly are very fond of the applicant. Numerous members of the applicant’s local church community have vouched for his honesty and sense of responsibility. Clearly the applicant is well-regarded by his community and could have a valuable role in assisting [Mr and Mrs A]. However, this is not a consideration for this Tribunal as the only issue for this Tribunal is whether the applicant meets the criteria for a protection visa.
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm. More details of the criteria and other relevant legal principles are set out below.
RELEVANT LAW AND PRINCIPLES OF REVIEW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act.
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 Attachment A to this decision.
Complementary protection criterion
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 there are 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 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 Attachment A to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
SUMMARY OF CLAIMS
The applicant claims to fear harm from political opponents and villagers in retaliation for violence and property damage which took place in the 2012 elections.
CLAIMS AND EVIDENCE
The evidence taken into consideration
In coming to a decision, the Tribunal has taken into consideration evidence provided to the Department as well as new evidence before this Tribunal, including evidence from the applicant, [Mrs A] and church members. The Tribunal has also considered independent country information about Papua New Guinea.
Summary of evidence before the Department
The applicant made claims and provided information in his application forms and supporting documents, including a statement dated 26 March 2019 (Statement of Claim). The applicant also provided evidence at an interview with the Department on 28 January 2020 (Department Interview). A summary of his evidence follows.
The applicant said in his application and Department Interview that he was born in [Village 1], [Town 1], [Province 1] in either [of two specified years]. In his Statement of Claim, he said that he was born in West Papua in [one year] but he corrected this in his Departmental interview.
He provided his address as [Village 1], and also said that his father and brother were residing there.
He said in his Statement of Claim that his biological parents were ‘killed at the age of [age]’ and his adoptive parents and brother reside in PNG. His family are Seventh Day Adventists. His adoptive mother and father are subsistence farmers. His adoptive parents already had [specified children] when he was adopted. The applicant claimed that he was physically and psychologically abused by his siblings.
He also referred in his application to a couple in Queensland, Australia as his ‘adoptive parents’.
He finished school in [year] in PNG and worked on the farm after that. He also worked at a [school] as a [Subject 1] teacher from 2012 until 2015.
The applicant said in his Statement of Claim that he campaigned in the 2012 PNG election in support of an independent candidate, [Candidate A] for [Seat 1], a seat held by [Candidate B] since [year]. The applicant was the campaign manager. He claimed that he distributed the candidate’s photographs in different areas and organised fuel. The applicant ‘supported the candidate morally and physically’. He provided bags of [supplies] while they visited and stayed in his area.
He claimed that during the election there was violence and people were killed and properties were destroyed.
He claimed that [Candidate A] used young men like the applicant to force people to vote for them. He claims that the community where he hails from has rejected him due to harm he brought in the election. The applicant states that he will be harmed or mistreated because of the damage to the properties and injuries which took place. He said that his own tribe will not respect him as the damage is because of him.
He claimed in his application that he was threatened with dangerous weapons such as bush knives and guns because of his involvement in the election. The applicant claimed in his application that when he was at home, a group of masked boys marched to his house to kill him. The applicant said that he was hiding and took photographs of them. The applicant reported the incident to the police, but nothing happened.
He elaborated on this incident in the Statement of Claim. He said that [Candidate A] won the election and the sitting member lost his seat. Then, around 2am one night, he received a telephone call from a friend informing him that supporters of the sitting member were on their way to the applicant’s house to kill him. He quickly left home and ran away to a nearby hill where he slept. Around 4am that same night the applicant woke up and from the hill could see a fire, and that they had burned his house and property. The applicant could see men whose faces were painted black and were carrying weapons. The applicant was shot in the back but escaped. These men also destroyed the property of other people within the community and his family who had supported the winning candidate. The applicant then escaped from one village to another. His friend informed him that the boys were looking for him. The applicant reported this to the police, but they asked him for a bribe and did not do anything. The applicant did not stay in one place too long. He went to charities to see if they could help, but they could not afford to.
At the Department Interview he said that [Candidate A] did not win, as he had said in the Statement of Claim, but he was close to winning.
He said in his Department Interview that after the election the opposition tried to destroy everything but [Candidate A] was not hurt.
He claimed that if he returns to PNG, he will face death as there is a culture of revenge.
He said in his Department Interview that from July 2012 when the elections took place until December 2012 when he went to Australia, he moved around from place to place, to his [relative’s] house, and around the community, and the church supported him.
The applicant decided he had to leave the country and arranged his departure. He arrived in Australia in December 2012. He said in his Department Interview that he travelled to Australia for a [meeting], sponsored by the church, which took place in Brisbane.
He said that he was not aware of how to apply for a protection visa, so he returned to PNG in February 2013. He said in his Department Interview that he went back to [Town 1] as that was his home and clan. He said that people in his area tried to chase him and kill him. He worked on the farm so they did not try hard to harm him. He said he worked on the farm while he was there for the three-year period.
He said in his Statement of Claim he remained in PNG for another two years and lived in Central Province. He said that after two years the men came to kill him again in Central Province, so the applicant arranged to travel back to Australia in 2015. At the Department Interview he said that he lived with family friends from church. The applicant stated that he stayed in Australia for two and a half months but had to return, as his visa was expiring and he was still unaware of protection visas. After returning to PNG in 2015, the applicant moved to a different area in the Central Province but continued to ‘have problems’. He said that ‘they came looking’ for him again so he decided to leave. In his protection visa interview, he said that he stayed in Port Moresby with some people from Central Province. While he was there he ‘went around with the youth group in Central Province’.
He said that he went back to PNG for three months in April 2016 and stayed in [Town 1] for three weeks. The applicant then came to Australia in July 2016. He said he went to [Town 2], Queensland and stayed with people from PNG. He met a couple called [Mr and Mrs A] who have become his parents in Australia. He said that the church paid for his trips to Australia.
He said in his Department Interview that ‘[Nickname]’ was a nickname for [Candidate B]. The delegate put to him that he had said that his brother supported [Nickname] and therefore [Candidate B’s] supporters cut off his [Body Part 1]. However, [Nickname] stood as a candidate in [another] Province. He said that this photograph depicted what happened to tribesmen in [Town 1]. Later on in the Department Interview he said that he meant to write ‘[another word]’ not ‘[Nickname]’ on the photograph.
Asked at the Department Interview why he kept returning to PNG if he feared harm, he said that he had no friends in other places.
He said that he could not relocate as PNG is made up of over 800 cultures and people have their own land.
The delegate put to the applicant that there had been two further elections, in 2017 and 2019 and the applicant had suffered no harm since 2012. He responded that in PNG 'no-one forgets’.
Documents provided to the Department 25 October 2016
·Photograph 1 is of a man who has lost [Body Part 1]. On a handwritten note the applicant states. ‘I took a photo of my brothers, where we normally support our new independent candidate, [named]. Therefore he had his [Body Part 1] cut off by one of the supporter for current MP [Candidate B] ([Seat 1]).’
·Photograph 2 is a photograph of men with cloth over their faces in some trees. He said ‘these are the boys were closing their faces with masks to threatening me and my family.. I went into the bush and took that photo for report to police’.
·Photograph 3 is a photograph of bandaged men sitting on a bench, which purportedly shows the applicant’s brothers admitted to hospital after conflict between his tribe and the tribe of the sitting member for [Seat 1].
·Photograph 4 is of a crowd of people which he claimed was at [Town 1] during the election. The applicant states this election led to civil war between clans and led to many injuries and some deaths.
·Photograph 5 is of protesting students, purportedly of [Institution 1] students protesting for the Prime Minister to step down.
·Photograph 6 is of protesting students, purportedly of [Institution 1] students rubbing their bodies with mud. The applicant states many were injured or died, and the schooling year was suspended due to political crisis.
·Photograph 7 is purportedly of [other] students wearing black uniforms to protest against the government.
·Photograph 8 is purportedly of [Institution 1] students burning newspapers in protest.
·Copy of a newspaper article titled ‘[title]’. The applicant states one of his brothers was ‘chopped’ by another clan.
·Copy of a newspaper [article], dated [2016], titled ‘Students Protest’, illegible.
·Payslip for 1 June 2015 to 7 August 2015 addressed to the applicant at [a named college].
Post-interview submissions – 10 February 2020
The applicant’s representative clarified issues raised in the Department Interview based on a telephone interview with the applicant.
He said that although the applicant had said in his Department Interview that ‘[Candidate A]’ was not hurt in the 2012 election, [Candidate A’s] house was burnt down but he escaped.
The representative said that the applicant had provided additional information to him about the 2012 election. He said that the whole tribe was helping [Candidate A] by putting up posters and providing food. He said that he was campaign manager. In this role he sat with elders in each village to persuade them that the sitting member was corrupt. He told them that [Candidate B] had done nothing for the community and had not provided power, roads or hospitals. He would explain the voting process and how to complete the voting card. At meetings, the applicant would say ‘some of you sneak out at night and go to [Candidate B’s] place and you come back with money. If I catch you I will burn your house and you will have to go, you cannot stay here’. He said that some people did take money from him. He then burnt their houses and cars to show that corruption would end. The applicant went to watch how people were voting and make sure they were voting for [Candidate A]. There were frequent fights at the polling stations between his supporters and [Candidate B’s]. He said that a lot of people were injured. The applicant campaigned very hard for [Candidate A] as he believed that [Candidate B] was corrupt. He believed they were going to win but in fact were destroyed.
The applicant clarified that by ‘young boys’ he meant young men in their early twenties.
The applicant clarified that after the election his parents were forced to move from the village as the applicant was blamed for the damage to the properties and the injuries people had suffered. He said that it was made clear to him that they were not welcome in the community and the applicant could not compensate for the loss by ‘buying pigs or rebuilding to make it okay with this village’. The applicant’s parents moved to a small piece of land in [District 1], a village a long way away from [Town 1]. The applicant helped his parents build a basic home and lived with them in 2012 in the months after the election. He was not teaching at [Village 1] in 2012 as [District 1] was too far away. The applicant cannot live with his parents as he had a troubled upbringing with them after he was adopted. He was beaten by his father and could not live peacefully with them. In 2013 he moved back to [Village 1] as he could no longer stay with his parents, and lived with different church members in surrounding villages. Due to the election, no one would let him live with them for a long length of time. In return for shelter, the applicant was expected to help with church activities. During this time he taught [Subject 1] at [Village 1] School voluntarily for a place to stay and food. In July 2014 he returned to his parents as the church members said it was too dangerous for them.

He returned to [Village 1] in October 2014 to teach and live with church members then returned to his parents in January 2015 until July 2015. He returned to [Village 1]. A church member told him that his enemies were trying to find him and would give money to anyone who informed on him. Other church members told him similar things so he left [Town 1].
The applicant clarified issues that arose in the Department Interview regarding whether he lived in Port Moresby or Central Province between 8 December 2015 and 26 January 2016. He explained that when he arrived in Port Moresby, he met up with members from his Seventh Day Adventist church. He did outreach work with them, which was to drive around Central Province and visit communities. They would make day trips once or twice a week then return to campus. He was living on the church campus and received food and accommodation for his outreach work. He then became aware of a [leadership] training camp in Brisbane. He also said that Port Moresby used to be called Central Province. Once there he was made aware of protection visas. He returned to PNG in April 2016 to say goodbye and thank the church members.
Evidence provided to the Tribunal
The applicant was born in [Town 1]. He is from [Tribe 1]. He was adopted at the age of [age] by a church family who are related to him. He does not know where his biological parents are living. He has one biological brother called [name] who was living in the same area.
There were [specified adopted family members].
The siblings are still living in [Town 1]. His stepparents and siblings are still living in the same house in [Town 1] where he grew up. It was a difficult family and he was bullied. He went to a local school with his siblings.
He was close to his mother and continues to speak to her when he can. It is very hard for him. He was not close to his father, as he was very violent. It was a very difficult time. He was close to some of his siblings, but he was an ‘outcast’ when growing up. His siblings would tease him. He struggled at times. As an adult he has spoken to [one sibling] but not often and his difficult background is ‘triggered’. Before he left for Australia, he did not have a smooth relationship with his [other siblings].
His parents were involved in politics as ‘everyone is involved in politics in PNG’. His father and the rest of the family also supported [Candidate A]. They were involved in the campaigns, providing [supplies] and putting up posters.
The area he lived in was a ‘[Tribe 1] area’. It is a big tribe with a lot of clans and is a close community.
He attended [school] in the area. He did not work and helped with the farming. One time he taught [Subject 1] two days a week. All members of the family attended the Seventh Day Adventist Church.
His brothers are subsistence farmers. One is [an Occupation 1]. He has some extended family in the area, but they are old.
The applicant first became interested in politics in 2012. He said that his province was corrupt and there were no services, such as power or water. He wanted to end the corruption and improve services. He heard [Candidate A] speak in his village holding rallies, and thought he was vibrant and intelligent, and he felt motivated to get him into power.
The applicant went to [Candidate A’s] house and told him that there were no services in the area and said he would like to support him. From there he supported his campaign. [Candidate A] said he could be campaign manager. He helped provide food and fuel and with his family and supported his campaign. He said that there were many campaign managers, so he was just campaign manager in his local village and spread the word about his policies. [Candidate A] stood for good government and building infrastructure like roads and hospitals. He was experienced in working in government. They were happy as he had good experience and policies. He was from [Party 1]. Asked who the leader was at the time, he said that ‘I am not too sure as it has been quite a long time’. The incumbent, [Candidate B], came from [Party 2]. He does not know the principles of [Candidate B’s] party. He ‘came up with policies but did not do anything’.
Asked if [Candidate A] embraced a slogan or logo in his campaign, he said it has been a long time. He said ‘maybe a [logo specified]’. He said that they did not have a proper office, they worked out of home. He was asked how many candidates there were in the election and he said that there were 12 or 13. Particular clans were supporting particular candidates. [Candidate B] was from [Tribe 2].
He said that when growing up as a child, all tribes and clans mixed together. People lived close by, but different tribes lived in different areas. At his school was mainly his tribe. Some of ‘their kids’ went to his school. The church was a mix of tribes. Generally in day to day life people got on together, although there was some ‘separation in life’.
He said that during the day [Candidate B] would get finances and at night there would be bribery for votes. He stopped this conduct, and said that they must not get involved in corrupt behaviour.
In his submissions he said that he would explain the voting process and how to complete the voting card. At meetings, the applicant would say ‘some of you sneak out at night and go to [Candidate B’s] place and you come back with money. If I catch you I will burn your house and you will have to go, you cannot stay here’. He said that some people did take money from him. He then burnt their houses and cars to show that corruption would end.
He said that on polling day some community members had been bribed and were voting for [Candidate B] instead of their candidate. The applicant went to watch how people were voting and make sure they were voting for [Candidate A]. He and others told them they should not be doing this. An argument started and a fight began. There were ‘a thousand people fighting’. The police did not come as they ‘do not care’. The candidates were moving around on the day. [Candidate A] was taken away by the police, and was not hurt. [Candidate B] was not there. It was in their polling booth. The applicant was injured – he showed the Tribunal a scar on his [body parts]. There were frequent fights at the polling stations between his supporters and [Candidate B’s] and a lot of people were injured. Eventually everyone went home and voting stopped.
He did not attend a doctor to treat his [injuries]. Family members had minor injuries. His brothers had cuts on [body parts].
He said that after the voting, [Candidate B] sent men into the village and they burnt properties and there were lives lost. Two of his boys ‘were lost’. His property was destroyed, his house and garden were burnt. After that they lived in other houses, and then in his mother’s place in [Village 2]. Later on they rebuilt the house. Asked where he lived after the election, he said he lived in [Village 2] a couple of months and moved around. People told him he had to repay the community for losses incurred.
He was asked about the incident referred to in his application in which masked men chased him. He said that this took place the next day. He was at home and he looked out of the window and saw boys with painted faces arriving. He and family members ran away. They ran up the hill, and when he looked down he saw the house was burnt down. His family was dispersed. His parents went another way. The next day they went to find churches to look after them. All of the family went to find a church. The parents and brothers and sisters lived in the community. He was with a pastor in the church. He stayed there for a few months. Then he moved to his mother’s place in [Village 2]. The community members told him to repay all the money and land. Asked why he was blamed, he said that he was ‘the influence’. He said it was because he influenced everyone in the community.
He said that he went to the police and the non-government organisation, [named]. They could not help.
He said that he was with the pastor for a few weeks then went to his mother’s place. He was the only one there, the others were in the community. He stayed there ‘for a couple of months, up to a year, but was travelling in and out, as they were looking for him as he was the reason everything happened’. Sometimes he stayed with other people.
He said that the church group told him there was a meeting in Brisbane, which he attended. He was asked why he did not apply for protection when he arrived in Australia. He said that he did not know anything as he ‘came for the church’.
The Tribunal asked him where he got the photographs from that he had provided to the Department. He said that he got them off the internet as they ‘illustrate what happened’ in his area. He said that some are photographs of tribal conflict in another part of the Highlands. He provided them to show what takes place in PNG. He said he did not have time when the conflict was happening to take photographs.
He said that when he returned from Australia to PNG from his church visit ([between] December 2012 [and] January 2013) he lived in Port Moresby. He went back to [Town 1] for three weeks and lived there. He was ‘working hard to compensate them’. He ‘worked around the clock while there’ to compensate them. He did not have a job for three years and helped the pastor with religious activities.
He said that he returned to Australia [in] October 2015 to find opportunities to work to pay his compensation. He said that he did not know about protection visas.
He stayed in Australia to [December] 2015 and then returned to PNG, staying in Port Moresby at the church. He arrived back in Australia in January 2016 and remained until April 2016.
Asked where he lived when he returned to PNG, he said that since the conflict took place in 2012 he has lived in Port Moresby, except for when he visited his family.
He said that he has been in detention from [March] 2021 until the current time. He said that [Mr and Mrs A] have been very helpful to him, and it has been difficult for him and he would like to help them. They are ‘like his parents’ and he does not want to go back.
In closing comments, the applicant said that his story was ‘all true’ and it was very hard for him. He said that he is ‘very wrong’ for what he has done in the past. He said that if he gets another chance, he will give back to the community and to the people who care for him. He submitted that it would be very difficult for him in PNG and there could be a good future for him in Australia. He confirmed that he is sorry for what he has done, is looking forward to a bright future and knows that Australia can be his home.
Documents provided to the Tribunal
The applicant provided numerous medical documents and media articles to the Tribunal, as well as letters from church members, Mr and [Mrs A] and references. These documents are listed in Attachment B.
Telephone evidence of [Pastor A], [Town 2] Seventh Day Adventist Church, 14 April 2021
The Pastor said that he met the applicant through the church. The applicant went to the church and told the Pastor of his situation, asked for help and found comfort there. The Pastor involved the applicant in church activities. The applicant told the Pastor that it had not been safe in his own village. He said that people had been chasing him so the church took him in and tried to keep him safe, but they could not do so. They agreed that the only way he could be safe was to leave the country. He said that it is not safe in Port Moresby because of payback, as people would follow him to Port Moresby.
The Pastor was asked how the applicant could have returned to his home area without repercussions. He said that they tried to protect him, but they could not keep him there long, as they had found out where he was. They agreed he should leave as they did not want to see a life being lost.
He said that the applicant told him that the tribesmen were after him, but did not name therm.
The Pastor said that the applicant is very humble, committed and secure in the church, and is a good member who works well with young people. He said that the applicant had been very helpful in his ministry. He was a person of good moral value.
The Pastor said that there is an election coming up in PNG, and Australia is the only place the applicant can be safe. If he returned, it would not be safe because of the system of payback, ‘for years you are still remembered’. He submitted that Australia is the applicant’s home.
Evidence of [Mrs A]
[Mrs A] said that in 2017 the applicant had told her the story about the electoral conflict and how he fears returning to PNG. He told her that he had to move around while living there to remain safe. She said that he needs protection.
She said that she wants him to stay in Australia and help her as she has a number of health issues. He is currently assisting her with her medical conditions. She said that she and her husband can provide a job and accommodation for him.
DECISION OF THE DEPARTMENT DATED 12 FEBRUARY 2020
The delegate was not satisfied that the applicant had been individually targeted by supporters of [Candidate B] or anyone else following the 2012 election. The delegate believed the applicant maintained a relatively normal life in [Town 1] without any harm for the three and a half years following the election. The delegate examined country information which provided that [Tribe 1] and [Tribe 2] appear to have reconciled much of their differences with [Candidate B]. The delegate was not satisfied that the applicant faces any real chance of serious harm if he returns to [Town 1] for reasons of his support for the losing candidate in the 2012 election, his fellow tribesmen blaming him for the destruction of property or his membership of [Tribe 1], individually or cumulatively. The delegate did not find that the applicant met the complementary protection criteria.
FINDINGS AND REASONS
Nationality
The applicant provided a passport from Papua New Guinea issued [in] 2012. The Tribunal is satisfied on the basis of the passport and his testimony that he is a national of PNG and that PNG is the receiving country for the purposes of the legislation.
Findings of fact
The reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims, in this case whether the electoral violence took place and whether the applicant was targeted afterwards as claimed. Findings of fact involve an assessment of an applicant’s credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth[1], and is guided by the observations and comments of both the High Court and Federal Court of Australia.[2] In the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. This ‘reasonable’ approach is supported in numerous judgments and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[1] Fox v Percy (2003) 214 CLR 118
[2] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The Tribunal is guided by these decisions and commentaries and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. The applicant is in immigration detention, which itself may be a stressful environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. A person may forget dates, locations, distances, events and personal experiences. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[3] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[3] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The Tribunal is satisfied that the applicant is from [Village 1] in [Town 1], and that he was adopted at the age of [age] into a large family. The Tribunal is satisfied that he had a difficult childhood, feeling excluded and unwanted, and that his father was violent. The Tribunal is satisfied that he worked as a subsistence farmer in [Village 1] and for a time as a [teacher] in [Village 1]. All this evidence has been consistent with his evidence to the Department and Tribunal, and he also spoke to the social worker about this in some detail.
The Tribunal is satisfied that the applicant and his family are from [Tribe 1]. The Tribunal is satisfied that like many [Tribe 1], they supported the candidate [Candidate A] in the elections in 2012 against the incumbent who came from [Tribe 2], and that there was significant violence during the election. The Tribunal is satisfied that the applicant was involved in managing the campaign in his village and with trying to force people to vote for [Candidate A] and was injured in fighting at one of the polling booths. The Tribunal is satisfied that properties in the area were burnt after the election.
There were some inconsistencies in his evidence which did cause the Tribunal to question whether the applicant was involved in supporting [Candidate A] at all. For example, he gave different evidence about whether his candidate won, which is something a strong supporter would recall clearly. In the Statement of Claim he said that his candidate was independent and won. At his Department Interview he said he was in [Party 1] and nearly won. In his post interview submission, he said he was ‘destroyed’, and he told the Tribunal that he lost. When asked about these inconsistencies the applicant said that the interpreter at his Departmental interview was poor. He said that [Candidate B] was bribing everyone at the time, and there were ghost polling booths and they ‘filled everything in’. He said that the counting was irregular, and there were discrepancies, and this is reflected in the country information. The Tribunal notes that he said in his Statement of Claim that his candidate won, so there was no interpreting issue there. The Tribunal is prepared to accept, however, that he may have said that his candidate won as this may have explained why there was violence against him, or perhaps he meant that he should have won, given electoral corruption; however, this is speculation on the Tribunal’s part.

In any event, given that the applicant was able to talk about why he supported [Candidate A], and his activities, the Tribunal is satisfied that he was involved as a local campaign manager supporting [Candidate A]. The applicant was able to explain that he supported [Candidate A] because he believed the incumbent candidate, [Candidate B], was corrupt, and he believed [Candidate A] would bring ‘new politics’. He said that he heard [Candidate A] speak in his village holding rallies, and thought he was vibrant and intelligent, and he felt motivated to get him into power. He was also concerned about the lack of infrastructure in the area, such as electricity, hospitals and roads. The Tribunal is satisfied that he was involved in the election as these reasons are persuasive. The Tribunal is satisfied that as claimed, he distributed the candidate’s photographs in different areas, organised fuel, ‘supported the candidate morally and physically’ and provided bags of [supplies] while they visited and stayed in his area. He has provided consistent evidence about this, and it contains the kind of detail commensurate with truth. He was also able to describe in some detail the corruption which took place, and the fight which ensued at a polling booth, where he sustained some injuries (scars were shown at the Tribunal hearing).
Sources support the notion that there was a history of clashes between [Tribe 1] and [Tribe 2], which spilled over into election violence. In [a previous year] there was a tribal clash between [Tribe 1] and [Tribe 2] over disputes over land,[4] and several lives from both sides were lost. Rivalry has continued over the years with some violence on both sides.[5] News articles refer to violence at the polls in the 2012 elections across PNG.[6] One article referred to a peaceful polling process in [Town 1], but with rival supporters having a car chase after the polling.[7] Sources also indicate that there was significant corruption, with one source specifically referring to complaints in [Town 1] about [the electoral process].[8] [These concerns] were mentioned by the applicant. Sources also indicate that tribal, linguistic, geographic, or personal ties drive political loyalties in PNG more than shared ideology does, which accords with the applicant’s narrative about what took place in [Town 1]. Indeed, many candidates run as independents and align with parties after they are elected.[9]
[4] [Source deleted.]
[5] [Source deleted.]
[6] Sydney Morning Herald, ‘Deaths and Violence as polls turn ugly in PNG’, 1 July 2017; PNG Post-Courier, ‘Death toll up in the Highlands’, 14 June 2012
[7] [Source deleted.]
[8] [Source deleted.]
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 10 February 2017
DFAT has also reported on corruption and violence in the elections in the Highlands:
Elections are held every five years. The 2012 parliamentary elections were monitored by a number of international and domestic organisations. Several major incidents of election-related violence occurred during both the polling and counting periods, resulting in serious injury, loss of life and destruction of property. Most of the violence occurred in the Highlands provinces (which are generally more violent than the rest of PNG), and it is difficult to say for sure whether individual incidents of violence were election-related or were the result of separate community or tribal tensions. In addition to the violence, observers also reported attempts to disrupt the election in particular locations, including by hijacking or destroying ballot boxes, or interfering with the count. Observers also noted that concerns had been raised about some members of the security forces reportedly acting in support of, or in collusion with, particular candidates.
DFAT assesses that, generally speaking, citizens of PNG are able to participate freely in the political process. However, this freedom varies considerably according to region ... Underlying violence can come to the fore during periods of heightened political activity, such as during elections, particularly in the Highlands.’[10]
[10] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 10 February 2017
The Tribunal is satisfied on the basis of his testimony and these country sources that the applicant was a local village campaign manager for [Candidate A] and was involved in fighting at the electoral booth in 2012 in [Town 1]. The Tribunal is satisfied that there may have been hostility towards him from opposition supporters and some [Candidate A] supporters.
The Tribunal is not satisfied that, after the election, masked men burnt his family home or shot the applicant or that he had to hide from them. The Tribunal is also not satisfied that the applicant was held primarily responsible for the property damage in the village and was targeted by villagers for payback. The reasons for these findings are set out below.
Firstly, his evidence about the masked men and incidents post-election was inconsistent to the extent that the Tribunal was unable to accept that the applicant had direct experience of the incidents claimed.
In his Statement of Claim he said that at around 2am one night, he received a telephone call from a friend informing him that supporters of the sitting member were on their way to the applicant’s house to kill him. He said that he quickly left home and ran to a nearby hill where he slept. Around 4am that same night the applicant woke up and from the hill could see a fire and that they had burned his house and property. The applicant could see men whose faces were painted black and were carrying weapons. He said that he was shot in the back but escaped. The handwritten notes accompanying a photograph depicting masked men stated that ‘I went into the bush and took that photo for report to police’.
By contrast, there was no mention of being shot in his Department Interview or at the Tribunal hearing, where he described hiding from masked men who burnt the house down. At the Tribunal hearing he said that the incident took place the day after polling. He said that he was at home and he looked out of the window and saw boys with painted faces arriving, so he and family members ran away. They ran up the hill, and when he looked down, he saw the house was burnt down.
When asked about these inconsistencies at the Tribunal hearing, he said that he was not asked about being shot. He said that the masked men had guns and machetes, came from everywhere, they were shot at and it ‘all happened at the same time’. The Tribunal is not satisfied that when specifically asked to describe what happened when the masked men came to his house he would not have mentioned being shot in the back, given how traumatic this would have been, or that the explanation of the incidents would have broadly consistent in the key elements.
The Tribunal has taken into consideration other photographs which he provided as evidence. Although he initially claimed these photographs depicted actual events which took place in [Town 1], at the Tribunal hearing he said that these photographs were of other conflicts in the Highlands. He told the Tribunal that he had sourced them off the internet, and they were provided to demonstrate the kind of conflict which took place in [Town 1]. The Tribunal accepts that there is extensive electoral conflict in the Highlands, but the photographs do not corroborate the incidents he claimed took place in [Town 1].
His evidence about what happened after the election was also inconsistent. He said in his Statement of Claim he had to move around from village to village after the attack. In his Department Interview he repeated this, saying he moved around from place to place, to his [relative’s] house, and around the community, and the church supported him. He told the Tribunal that he lived with a pastor in the village, then went to his mother’s place in [Village 2]. In his application, he said that he had lived at one address, in [Town 1].

100. In his Statement of Claim he said that he returned in 2013 to a different province of PNG, Central Province. He said that ‘they came and tried to kill me again in the Central Province’ after two years so he arranged a trip to Australia. In his Department Interview he said that he lived with his parents from 2013 to 2015 in [Town 1], working on his family farm and at a [school] in [Town 1], helping out, from 2012 onwards until 2015. He said that he went back to [Town 1] as that was his home and clan, and he worked on the farm for three years and he had never lived anywhere else. In post-interview submissions he said that after the election he helped his family build a new house in [District 1] which was some distance from [Village 1], and he lived there until 2013 when he moved back to [Village 1] to live with church members and he worked at the school. He said that he returned to live with his parents in July 2014 as the church members said it was too dangerous. He said that he returned to [Village 1] in October 2014 and lived with his parents again between January 2015 and July 2015. He said that he moved around and went to his parents’ house as well as living in Port Moresby. He said that he was trying to pay compensation and was struggling as to what to do for the community. In the Department Interview he said that [Town 1] was the only place he had lived in PNG, and he lived with his parents and worked on the family farm and was a teacher. This suggests his parents were not in [District 1]. At the Tribunal hearing he said that that they lived in other houses, and then in his mother’s place in [Village 2]. Later on they rebuilt the house. Asked again where he lived after the election, he said he lived in [Village 2] a couple of months and moved around. He later said that from 2012 when the incident occurred, until he left PNG, he had lived in Port Moresby but he visited his family for three weeks.
101. At his Department Interview, he said that from December 2015 until 26 January 2016 he lived in Port Moresby for seven weeks and went with a church group around Central Province.
102. When asked about these inconsistencies at the Tribunal hearing, he only referred to his visit to PNG from December 2015 until he left for Australia in January 2016, when he said that he was living in Port Moresby but doing outreach around Central Province with a youth group. He said that in 2015 he heard that enemies were looking for him. This does not explain the strikingly different evidence about where he resided when he went back to PNG from 2012 to 2015. As the evidence most contemporaneous to the events was that he had returned to his home region in 2012, this is the evidence that the Tribunal accepts. This also accords with information provided in his application form, in which he provided his [Town 1] address as his address and said that he worked on the family farm and at a local [school] between 2012 and 2015.
103. In making findings on these inconsistencies, the Tribunal has taken into consideration psychological research on memory of trauma[11] which indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. Further, the Tribunal notes that psychological research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[12] The Tribunal is also conscious that there may be factors that consciously or otherwise influence decisions.[13] The Tribunal has considered research which indicates Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[14] The Tribunal does not accept that key elements of his narrative, such as the incident with the masked men, or where he lived, would be totally different due to trauma, or that the Tribunal has utilised assumptions in reaching these conclusions. The Tribunal is not satisfied that the applicant was shot at and his house burnt down, or that he was targeted for harm after the election, given the serious inconsistencies in the context of his narrative as a whole, and considering the totality of the evidence.[15]
[11] M Conway, ‘Episodic Memories’ (2009), 47 Neuropsychologia 2305; J Herlihy, L Jobson, and S Turner, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’, (2012) 26 Applied Cognitive Psychology 661; C Brewin, ‘The nature and significance of memory disturbance in posttraumatic stress disorder’, (2011), 7 Annual Review of Clinical Psychology 203
[12] H E Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010), International Journal of Refugee Law 469
[13] H Bennett, H and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65-9
[14] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1),71-103
[15] Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198 at (11).
104. In addition to inconsistencies about his experiences in PNG, the Tribunal is also not satisfied that villagers sought him out for harm while he was living in PNG, given that he remained in the area after the incident until he went to Australia, and then returned there again between 2013 and 2015, and again for three weeks in 2016. As discussed earlier, the applicant has presented various accounts of where he lived during these times, but the Tribunal has accepted that he was living primarily at home in [Town 1], working on the family farm and in a [school], as this evidence was most contemporaneous and accords with the details provided in his application. The Tribunal is satisfied that the applicant was not harmed by villagers during this time, which does indicate that he was not being targeted by them for harm. While there may have been some hostility from individuals involved in that election, the Tribunal is not satisfied that he was targeted for revenge.
105. The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor are decision makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, nor are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:
where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[16]
[16] [1997] FCA 1198 at (11).

106. The Tribunal is not satisfied that the applicant was shot or that his house was burnt down or that he was targeted after the election by villagers or opposition supporters. These findings are based on the inconsistent evidence provided by the applicant as discussed above, not only about the incidents of violence but about the circumstances of his return visits. The Tribunal has ascribed little weight to the letters from [Pastor B], the pastor of the [Village 1] Seventh-Day Adventist Church as the information he has provided in his letters was provided to him by the applicant, and the pastor was not present during the conflict. Details in the letters also differ to some of the evidence provided to the Department and Tribunal by the applicant, for example, details of the fight after the election and the claim that he has never returned to his home region.
107. The Tribunal notes that the Pastors in PNG and Australia and Mr and [Mrs A] have provided very positive character references for the applicant and have said that he is honest and responsible. This may suggest that he found himself in difficult circumstances and fabricated part of his claims to bolster his claim, including exaggerating what took place after the election, and pretending that he took the photographs. As found by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

Does the applicant have a well-founded fear of persecution for reasons of his political opinion/ethnicity?
108. Under s.5H(1) of the Act, 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 themself of the protection of that country.
109. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
110. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Genuine fear of serious harm
111. Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.
112. The Tribunal is not satisfied that the applicant has a genuine fear of serious harm for reasons of his political opinion or ethnicity, although he may have concerns about returning to PNG given difficulties in his childhood, family and living circumstances. In reaching this conclusion, the Tribunal has taken into consideration the fact that the applicant returned to live in the region, the fact that he took so long to apply for a protection visa while in Australia, and the fact that he requested to return to PNG in 2017. These factors have been considered cumulatively.
113. As set out in the findings of fact above, the evidence establishes that the applicant returned to live predominantly in and around his home region after the election until he left for Australia in December 2012, then again from 2012 to 2015 and for three weeks in 2016. If he had a genuine fear of serious harm, it is unlikely that he would have returned to the region where he feared harm.
114. The Tribunal is not satisfied that he would have lived predominantly in his home region after the election if he had a genuine fear of serious harm, rather than relocating to Port Moresby or other locations. The Tribunal has also taken into account the period of time that has elapsed between the applicant’s first arrival in Australia (2012) and the application for protection (2016), although this is not the sole reason for finding that the applicant’s claims are not credible: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346. When asked about this, the applicant said that he did not know about protection visas: ‘I heard nothing to be honest’. The Tribunal acknowledges that sometimes visitors may not know about protection visas. However in the applicant’s case, it is difficult to reconcile the fact that he first arrived in Australia in 2012 but did not apply for a protection visa until 2016, given that he claims to fear being killed or seriously harmed upon return, such that it would have been expected that he would have enquired about how to stay permanently. Furthermore, between 2012 and 2016 he entered and exited Australia on a number of occasions. This meant that he would have engaged with the Department in regard to applications for visas, and therefore would have had contact either with migration agents or with the Department through its offices or websites. He also had contact with PNG church members living in Australia. It is difficult to believe, as claimed by him, that for all this time, he did not know anything about the possibility of applying for protection or that he would not have made enquiries about it.

115. The Tribunal has also taken into account the fact that, according to Departmental records, he asked the Department [in] June 2017 if he could travel back to PNG to see parents. He said that he wanted to get a bridging visa which would allow him multiple entries. Asked by the Tribunal why he would do this if he feared getting killed or harmed in PNG, he said that he wanted to go back to check in with his parents and see if he could negotiate with them. The Tribunal acknowledges that he may have wanted to see his parents and resolve issues with them, however, the fact that he was trying to return, with a multiple entry visa, to the region where he claims to fear harm does suggest that he does not have a genuine fear of serious harm for reasons of his political opinion/ethnicity.
Real chance of serious harm
116. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.
117. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.
118. In MIEA v Guo (1997) 191 CLR 559 at 572, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is “well-founded” when there is a real substantial basis for it ... A fear of persecution is not well-founded if it is merely assumed or if it mere speculation’.
119. The Tribunal is not satisfied that the applicant has a real chance of serious harm, when taking into consideration the findings of fact, the lack of prior harm, his family’s situation and country sources about the current situation in his region.
120. As set out above, the Tribunal is not satisfied that the applicant was shot at, that his house was burnt down, or that supporters of [Candidate B] or villagers sought him out for harm after the election in 2012. The Tribunal is not satisfied that there is a real chance of serious harm in the reasonably foreseeable future on the basis of payback or revenge, given that the applicant was not sought out for harm in the past and did not suffer actual harm after the election period between 2012 and 2016 although living predominantly in his home region and spending time with his family, at his farm and at a school, where he could have been easily located. Even if living away from the region for part of that time, he was not located or harmed. Furthermore, his family have not suffered any harmful repercussions for his involvement or for their own involvement in the election.
121. The Tribunal is satisfied, as discussed earlier, that the applicant was involved in the election campaign and a fight at the polling station in 2012. However, as put to the applicant at hearing, it has been 10 years since the conflict in 2012, and he did not suffer any harm while in PNG, although he lived there for significant amounts of time and his family has also not suffered harm since then. He said that his life would be lost if he returned as he did not ‘pay anything back’. The Tribunal has considered this claim carefully as the culture of payback is powerful in PNG,[17] and there has been extensive violence in the Highlands.[18] The pastor also gave evidence that people are ‘always remembered’. However, the Tribunal is not satisfied that there is a real chance of harm in the form of payback or revenge, considering that he did not suffer harm while living in PNG and his family has not been harmed since.
[17] Kumagai, K, ‘Can wantok networks be counter-publics? Development of public space in urban PNG’, Annals of Ochanomizu Geographical Society, Vol 55, 30 June 2016
[18] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 10 February 2017
122. Furthermore, although PNG has had a volatile history with frequent tribal conflict and violence, particularly around election time, in the applicant’s region there has been a reduction in conflict with little evidence of conflict between [Tribe 1 variant] and [Tribe 2].[19]
[19] Searches done on Google, DFAT, CISNET, Factiva, Refworld, media sources and non-government reports
123. PNG is made up of people with 800 different languages, divided into tribes each of which has several clans and sub-clans.[20] Clans of 350 to 1000 are the units for most political actions including war.[21] A related member of a social group, such as a family, clan or tribe is called a wantok.[22] Wantokism and the custom of retaliation or payback is prevalent in rural and urban areas.[23] Entire clans or tribes can be required to retaliate against perceived wrongs committed against fellow clan members, creating a difficult to break cycle of retribution.[24] Ethnic group leaders often work with law and order committees, police and political representatives to restore peace and resolve conflict.[25] However, sources agree that policing is generally inadequate.[26]
[20] Castro, J, ‘Old traditions ease tribes modern warfare’, Live Science, 27 September 2012.
[21] Weissner, P, ‘Youth, elders and the wagers of war in Enga Province, Papua New Guinea’, ANU, School of International, Political and Strategic Studies, State, Society and Governance in Melanesia Discussion Paper Program, 2010 to 2013
[22] Lakhani, S and Willman, AW, Briefing note No 2 : drivers of crime and violence in PNG, World Bank, Social Cohesion and Violence Prevention Team, 30 November 2012
[23] Kumagai, K, ‘Can wantok networks be counter-publics? Development of public space in urban PNG’, Annals of Ochanomizu Geographical Society, Vol 55, 30 June 2016
[24] Bertelsmann Stiftung’s Transformation Index, Papua New Guinea Country Report 2016, 2016
[25] The National, ‘Lae ethnic rivals agree to reconcile’, 10 February 2016
[26] Amnesty International, Amnesty International Report 2020/21, The State of the World’s Human Rights, 6 April 2021
124. DFAT reports that:
Tensions between and within PNG’s hundreds of different groups occurs frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.
Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country’s population. Conflicts between various groups are complicated by grievances over access to royalties, benefits, and compensation associated with resource extraction projects in the country, whether mining, gas extraction or logging. DFAT is aware of cases in recent years where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby.
Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs. In December 2014, the Internal Displacement Monitoring Centre estimated there were about 22,500 people displaced within PNG because of tribal warfare (and natural disaster). In particularly serious cases, provincial authorities may request the deployment of the Papua New Guinea Defence Force (PNGDF) and/or the Royal Papua New Guinea Constabulary (RPNGC) Mobile Squads. These forces are known for taking a blunt approach to restoring security, including through burning villages and holding village leaders for ransom until perpetrators have given themselves up.
The Inter-group Fighting Act (1977) prohibits inter-tribal fighting. Section 11 (2) of the Act provides for a punishment of between three and six years’ imprisonment where a person has taken part in inter-tribal fighting that has resulted in death. Section 11 (3) of the Act provides for a punishment of between 20 to 30 years’ imprisonment if a Court determines that an individual is a principal offender or a leader of a fight that results in death. While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they will be subjected to ‘payback’ violence.’[27]
[27] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 10 February 2017

125. In June 2017 there was serious societal violence around election time, particularly in the Highlands region, with Transparency International reporting five key issues of concern including bribery and intimidation of voters.[28] There was also fighting between supporters of opposing candidates in the Southern Highlands[29] and Enga province[30] following the 2017 elections, resulting in deaths and injuries. The applicant has provided a number of media articles which demonstrate that there has been significant violence between various tribes.
[28] Transparency International, TIPNG Observation Report, National Parliamentary Elections 2017, 10 November 2017
[29] Radio New Zealand International, ‘Five more killed in PNG election violence in Mendi’, 7 August 2017
[30] Radio New Zealand International, ‘Enga death toll up to 20 after latest election-related violence’, 14 August 2017
126. However conflict in the applicant’s region has been greatly reduced since 2014 as [efforts continue] towards de-escalating violence.[31] A peace agreement was signed between [Tribe 1] and [Tribe 2] in 2015 to end the ‘40 years of conflict’.[32] Articles referred to attendance at the peace ceremony of men who had lost their fathers and relatives in the tribal fights in the 1970’s who had agreed to reconciliation.[33]. According to one article:
[31] [Source deleted.]
[32] [Source deleted.]
[33] [Source deleted.]
[Deleted.].[34]
[34] [Source deleted.]

127. [Deleted.][35]
[35] [Source deleted.]
128. The applicant was asked if it would now be safe to return to the region given these sources which indicate co-operation between the tribes. He said that peace is at a national level, and in the community, there has been no peace and by 2017 they were fighting in the region. He said that the pay back system is still in place. It is true that there was still election-based violence notwithstanding the peace agreement[36] and that there could still be animosity between individuals. The Tribunal has taken note of articles provided by the applicant which demonstrate that there is tribal conflict in many parts of the Highlands. However, the Tribunal was unable to locate any recent articles on violence in the area, between the tribes or between [Party 1] and [Party 2] in the [Town 1] area[37] which does suggest that there is not significant volatility in the region currently.
[36] [Source deleted.]
[37] Searches done on Google, DFAT, CISNET, Factiva, Refworld, media sources and non-government reports
129. The Tribunal is not satisfied therefore that there is a real chance of serious harm if the applicant were to return to the [Town 1] area given this more peaceful environment created by the peace agreement and little evidence of conflict in his specific area. Further as discussed, the Tribunal does not accept that the applicant was harmed or being targeted following the election in 2012, or that he has been targeted since when he was living in PNG, and his family has not been harmed and are still living there. The Tribunal has also taken into consideration that despite the electoral violence, the applicant’s evidence was that in his area people generally get on although there is some separation between the tribes. The Tribunal is sympathetic to the applicant’s position in that he may feel vulnerable returning to his region, given an unhappy childhood, as described in the psycho-social report and his testimony to the Tribunal, and the fact that he has not lived there since 2015/16. However, the Tribunal is not satisfied there is a real chance of serious harm, in the sense of a substantial and non-remote chance, even taking into consideration his vulnerabilities, and noting also that he has remarked on a close relationship with his mother.
130. The applicant also provided some articles about public protests and police responses. The Tribunal is satisfied that there have been a number of political protests in PNG which have been dispersed with violence. In 2016 and 2018 the police responded to student boycotts and protests against government corruption at universities with live ammunition.[38] The applicant has not been active in political groups since he left the country and it is not claimed that he will become involved in political groups or activity on return. The Tribunal is not satisfied therefore that there is a real chance of serious harm from authorities for reasons of his political opinion.
[38] United States Department of State, Country Reports on Human Rights Practices Papua New Guinea, 2018 and 2019
Does the applicant have a well-founded fear of persecution on the basis of his criminal conviction in Australia?
131. Although not raised by the Tribunal, the Tribunal notes that the double jeopardy principle (ne bis in idem) is upheld in PNG and there are no reports of re-prosecution for crimes committed abroad. The Criminal Code and the Constitution prevent re-prosecution for crimes for which a person has been convicted in a competent court outside PNG.[39]
[39] Criminal Code Act 1974, Independent State of Papua New Guinea Office of Legislative Counsel, 1974 (as amended 2006), Sections 12-15, International Labour Organisation, NATLEX database
132. The Tribunal is not satisfied therefore that there is a real chance of serious harm by way of imprisonment on the basis of criminal conviction in Australia.
Does the applicant have a well-founded fear of persecution in the form of criminal violence?
133. According to DFAT:
While varying in degree according to location, the overall crime rate in PNG is extremely high and is characterised by high levels of violence. Crimes occur randomly, and are particularly prevalent in Port Moresby and other major cities; the settlement areas of towns and cities are particularly dangerous. Machetes and firearms are often used in assaults and thefts. Car-jackings, armed robberies, assaults (including sexual assaults) and stoning of vehicles are common.[40]
[40] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 10 February 2017

134. While the crime rate is high, the Tribunal is not satisfied that any crime the applicant may suffer would be for any of the reasons set out in the legislation, race, religion, nationality, political opinion or membership of a particular social group, as crime is by nature random and non-selective.
Findings on refugee criteria
135. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Does the applicant meet the complementary protection criteria?
136. If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
137. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
138. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
139. The Tribunal has not accepted that the applicant was shot at or pursued by villagers or political opponents following the 2012 election or that later they sought him out for payback. Reasons for this are set out earlier in the decision. The Tribunal is not satisfied that there is a real chance of serious harm were the applicant to return to [Town 1] in the reasonably foreseeable future, or on the basis of his criminal conviction in Australia, for reasons set out earlier. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation, from villagers, political opponents or the authorities.
140. The Tribunal has considered whether there is a real risk of significant harm by way of crime, as the crime rate is high, as set out earlier. Pursuant to the legislation,[41] there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. Given the random nature of crime,[42] the Tribunal is satisfied that the risk of being a victim of crime is one faced by the population of the country generally and not the applicant personally.
[41] Section 36(2B) of the Act
[42] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 10 February 2017
Findings on complementary protection criteria
141. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
142. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
143. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
144. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
145. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member
Attachment A
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.
…

ATTACHMENT B
Documents provided to the Tribunal
The applicant provided the following documents to the Tribunal:
·     Letter dated 5 May 2020 from [Dr A] to NDIS relating to [Mrs A’s] medical conditions.
·     Letter dated 16 June 2020 from [Dr B], [Medical Centre 1].
·     Letter dated 4 September 2020 from [Dr A] at [Medical Centre 2].
·     Letter dated 14 January 2021 from [Dr C].
·     Letter dated 9 April 2021 from [Dr A] at [Medical Centre 2].
·     Letter dated 14 April 2021 from [Pastor A] from the PNG Seventh-Day Adventist Church, confirming the church membership of the applicant and detailing the violence following the 2012 election.
·     News article, dated 12 March 2020 from the Post-Courier, titled ‘Three children among 11 killed in tribal fight’ referring to tribal conflict between two tribes from Tari.
·     News article National dated 13 March 2020 relating to a Supreme Court case allowing opposition leader Belden Namah to intervene in a case involving his appointment.
·     Four photographs showing a burnt lot, which the representative submitted is the applicant’s parent’s property. There are also photographs of a bus crash which the representative submitted shows loved ones and friends after the election.
·      News article from the Post-Courier dated 12 March 2020 titled ‘Massacre in Porgera; three children among 11 killed in tribal fight’.
·      News article titled ‘Men arrested for fighting’.
·     News article dated March 2020 titled ‘Manning condemns Porgera killings’.
·     Letter from [Pastor B] of the [Village 1] Seventh-Day Adventist Church dated 11 April 2020. [Pastor B] states that he has known the applicant since 2010. He states that he was a youth leader and Sabbath school class teacher for the church and is honest and trustworthy.
·     Email from the authorised representative dated 14 May 2020 stating that she needs the applicant to help her at home with domestic work and care as her health is deteriorating. She has been diagnosed with [Condition 1] and will rely on the applicant when he is released.
·     Letter signed 17 May 2020 from [Mr and Mrs A] referring to the applicant as their ‘stepson’. They met the applicant through the Seventh-Day Adventist Church in [Town 2], QLD, they state that [Mrs A’s] health has deteriorated, and they wish for the applicant to care for them in their ill-health. A doctor’s letter dated 4 July 2019 is attached confirming [Mrs A’s] medical conditions. They state that he moved about for a few years in PNG due to political violence.
·     ‘Letter of confirmation’ dated 20 August 2020 from [Pastor B], the pastor of the [Village 1] Seventh-Day Adventist Church, confirming that the applicant was ‘heavily involved in the 2012 national election trouble fight’. The letter stated that the applicant was a faithful church member who became heavily involved in the 2012 election. He said that as a result ‘his family’s and clan’s big properties as a whole were destroyed, many people were injured and even lost their lives’. The pastor confirmed that the applicant supported one of the candidates, [Candidate A variant] and influenced some of his brothers to vote, while his other half-brothers and the rest of the clan supported [Candidate B]. [Candidate A’s] supporters got angry with [Candidate B’s] supporters and fought with them ‘because one of [Candidate B’s] supporters got drunk and openly insulted (the applicant) and fought with him during the vote. As of result (the applicant) punched him on the face and his nose was bleeding and (the applicant’s) team combined and injured the culprit half-death. Thus, [Candidate B’s] supporters retaliated with them and the fight got worse. As of result, two men killed and instantly death and many large properties on both sides were burned down, destroyed and they are now in ruin.’ He said that the applicant left home to live with his [relative] in [Village 2], of [District 1] of [Town 1] in fear of his own brothers ‘hunting him to kill because their many properties were lost’. He said that the applicant then went to Port Moresby, where he befriended Christian families and was sponsored to travel to Australia. He said that he returned without the knowledge of his brothers and went to [Village 2] and then to Port Moresby in fear of his brothers and clan men. He said that he has never returned to his home ‘because the demand of the compensation’ was not met.
The letter states that the pastor ‘solemnly confirm(s) that [the applicant’s] life is at risk now to return to Papua New Guinea, even his home village [Village 1] unless and until he settles the demand’. Photographs of damaged property accompany the letter.
·     Letter from [Pastor C], Pastor of [Town 2] Seventh-Day Adventist Church, dated 20 August 2018 stating that the applicant had been a regular attendee of the church since 2015 and had participated in a number of activities.
·     [Bank 1] statement of [Mrs A] for 4 November 2020 to 3 February 2021.
·     [Bank 1] bank statement of [Mrs A], [and other family members] dated 22 April 2021.
·     [Bank 2] Bank statement of [Mrs A] dated 22 April 2021.
·      Letter dated 11 September 2017 from [Dr C] in relation to [Mrs A’s] medical issues.
·      Letter dated 12 September 2017 from [Dr D] at [Medical Centre 3] in relation to [Mrs A’s] medical issues.
·      Letter dated 28 November 2017 from [Dr D] at [Medical Centre 3] in relation to [Mrs A’s] medical issues.
·     Letter dated 4 July 2019 from [Dr C] confirming that [Mrs A] has [Condition 1] which has incapacitated her for work, with cognitive decline and a number of other serious symptoms.
·     Letter dated 10 October 2019 from [Dr C] to [Dr A] in regard to the provisional diagnosis of [Condition 1].
·      Letter from [Mr B], former President of [Organisation 1], dated 25 April 2021 providing a character reference for the applicant, whom he first met in 2016. He said that they met at the church. He said the applicant led the youth group and was Choir Master, as well as participating in afternoon worship programs and lessons. [Mr B] said that he was well respected, fully committed as a Christian, and had good leadership and teaching skills. He did not believe that the applicant was a dangerous man.
·     Statutory Declaration of [Mr and Mrs A] dated 26 April 2021 stating that they are known as the applicant’s Australian parents and they want him to live with them and were willing to provide accommodation and financial support. They state that they are in contact with the local PNG community where they live and wish for the applicant to be their full-time carer as well as being employed in their business.
·     Letter from Mr and [Mrs A] dated 24 April 2021 stating that they wish for the applicant to remain in Australia due to their deteriorating health. She suffers from a [specified] disease and is in a wheelchair and requires assistance for her daily regime. They said that they can provide a safe, supportive family with moral family values. They had met through the church and had developed a strong relationship based on trust, honesty, integrity and genuine love and care.
·     Letter from [Mr C], speech pathologist to [Dr C] dated 31 March 2021 stating that he had been seeing [Mrs A] since July 2020 concerning treatment for [medical issues], both of which were deteriorating over time. An information sheet on ‘[Condition 1]’ was provided which stated that this is a rare, [condition] affecting the [specified] functions.
·     A number of photographs depicting [a bodily wound]. An accompanying handwritten statement said ‘I mostly involved my tribesman as my main power to worked very hard to support him with a lot of resources. Unfortunately we didn’t make it because of his ([Candidate B]) corruption actions. Therefore the tention raises in the polling boot and the fight broke out resulting damaged of properties and lives were lost. Everythings happened because of me. I was the main target of influencing and heavily involving people to support [Candidate A]. I’m the centre of both parties causing massive destruction. As a matter of fact I was harmed and injured (Attached some photos of my current state of my body. In addition to that some of the photos that I was attached driving my claims as a representation of what has been happened. I didn’t have any camera or phone to recorded that time. I can’t hide anymore in [Town 1] becaue they are looking for me everywhere. So I decided to escape [Town 1] to Port Moresby. After I escaped from my safety in Port Moresby I was look after by a pastor in [Town 2] church Seventh-Day Adventist in Port Moresby, Papua New Guinea, living with him for a while and experience some good spiritual journey. However the enemies for both side find out that I was located in Port Moresby. Finally they aftering me but I’ve got no choice so the pastor help me fly out of the country’.

· Reference dated 17 May 2021 from [Ms B] who states that she had known the applicant for 10 years and found him to be hardworking and of good character. She said that he assists his ‘Australian parents’ in their business and home.
· Psychosocial Report in the matter of (the applicant) prepared by [Ms C], Social Worker, Client Assessment and Referral Service, [Organisation 2], dated 28 November 2019. The Report referred to the applicant’s family and developmental background. It confirmed that he was one of [number] children living with extended family. He does not know what happened to his parents. He identified ‘[name]’ as his mother and said that he had a close relationship with her. He said that his father was a brutal man and was violent to him. He said he was exploited in the family and expected to do the physical work. They lived in basic conditions, with water brought up from the river. He spoke of the importance of the Seventh-day Adventist Church in his life. His stepbrother is currently [an Occupation 1] in PNG. Elders in the church tried to stop the violence in his family. He was bullied at school and found it difficult, leaving in [Grade] and helping with farming. He was very involved as a youth leader in the church and was sent to Brisbane in 2012 for a conference.
He said that he became politically active in 2012 supporting the new candidate as the sitting candidate was corrupt. He said that his candidate won, but there were violent repercussions, and the village was wiped out, burnt in revenge. He said that they had to flee. [An agency] offered some help but he had to move around to keep himself safe.
He said that he returned to Australia in 2015 as [an occupation]. He said that he returned to PNG but found that he was a target of reprisals from the 2012 elections. He said that ‘I was told I would be killed. I tried to settle with family and friends but found there was no place for me’. He returned to Australia, made a connection with the Seventh-day Adventist Church in [Town 2], Queensland and became active in the church, choir and working with youth. He got permanent work and played [a sport].
He met his victim through a dating site as he wanted to meet someone to settle down with and have children, and claimed to be unaware of her disability.
[Mrs A] told the social worker that the applicant was like a son to them. She said that he was gentle and friendly.

[2021] AATA 3222

23 June 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction