2010789 (Refugee)

[2024] AATA 1402

2010789 (Refugee) [2024] AATA 1402 (4 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2010789

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Bridget Cullen

DATE:  4 March 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 4 March 2024 at 11.29am

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – race – tribal violence – election violence – employment – fear of killing – return visit to Papua New Guinea – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The Applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 23 August 2017. The delegate refused to grant the visa on the basis that the Applicant is not a person in respect of whom Australia has protection obligations.

3. The Applicant appeared before the Tribunal on 3 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Friend A], who is the applicant's friend.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages. The Applicant had strong English language skills, but did use the interpreter when he felt more comfortable doing so. At various junctures during the hearing, and at the conclusion of the hearing, the Applicant confirmed with the Tribunal that he understood the Tribunal’s questions and the interpreter.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. 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.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

4. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

5. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The Applicant’s claims for protection can be summarised as follows:

·The applicant’s tribal enemies, the [Tribe 1], invaded his village in the night, burned down houses, and brutally killed people from his tribe ( [Tribe 2]);

·The [Tribe 1] were well-armed and are pursuing his tribespeople throughout Papua New Guinea. The applicant claims he is the only member of his family still alive following the tribal conflict in his village;

·After the applicant departed from [Village 1] to [Town 1], the [Tribe 1] have continued searching for him specifically, and are seeking to torture or kill him, as he might help his clan to eventually take revenge against them;

·The applicant later travelled to Lae, however it was difficult for him to stay there due to a lack of support, therefore he moved to Port Moresby, where he lived informally at his church;

·The applicant believes he will be killed, tortured, or otherwise harmed by [Tribe 1] if he returns to Papua New Guinea, because he is a member of the [Tribe 2];

·Both of the applicant’s parents were killed in around 1996 or 1997 by the [Tribe 1];

·Whilst the applicant visited Lae in 2013, he was threatened by a group of boys who he believed were associated with the [Tribe 1]; and

·In 2013, the Applicant was attacked by a group of [Tribe 1] whilst at a [business 1] in the Port Moresby suburb of [Suburb 1].

1. The Tribunal has the following information from the Applicant’s Department file:

   ·Copy of the Applicant’s passport, issued by Papua New Guinea;

   ·Letter from [Authority 1] dated 3 November 2015 addressed to [Ms A] regarding the death of her spouse, [Mr A];

   ·Letter from [Authority 1] dated 4 November 2015 addressed to [Ms A] regarding [the death] of her spouse, [Mr A];

   ·Queensland Death Certificate of [Mr A];

   ·Google Maps of address: [Address 1];

   ·Copy of the Applicant’s Birth Certificate, issued by Papua New Guinea;

   ·Screenshots of the Applicant’s [social media] page;

   ·Email from Applicant to [Authority 2], subject line: Details of Harm, dated 27 September at 12:00pm; and

   ·Email from Applicant to [Authority 2], subject line: Introduction of Me, dated 27 September 2018 at 3:14pm.

2. The Applicant submitted the following information to the Tribunal:

   ·Copy of the biodata page of the Applicant’s new Passport, issued by Papua New Guinea;

   ·Applicant’s written submission, undated; and

   ·Character reference by [Friend A], undated.

The Applicant’s identity

1. The Tribunal finds that the Applicant is a citizen of Papua New Guinea based upon his passport and will assess his claims on that basis. The Tribunal also finds that the Applicant is outside his country of nationality, Papua New Guinea. Papua New Guinea is therefore the receiving country for the purpose of assessing the Applicant’s claims for protection.

2. There is no evidence before the Tribunal to suggest that the Applicant has a right to enter and reside in any country other than his country of nationality, Papua New Guinea. The Tribunal therefore finds that the Applicant is not excluded from Australia’s protection obligations pursuant to section 36(3) of the Act.

Visa history

1. The Applicant’s visa history indicates that he first arrived in Australia [in] April 2014, on a TU-572 Vocational Education and Training Sector Visa. He then departed Australia in November of 2015, and then returned a month later in December of 2015, again on a TU-572 Vocational Education and Training Sector Visa. A further TU-572 Vocational Education and Training Sector Visa was granted in June of 2016. On 23 August 2017, the Applicant applied for the Protection Visa that is the subject of this review.

2. Although the Applicant had a series of student visas, he did not complete his intended studies due to financial hardship. He thinks he completed a Certificate 1 and Certificate 2. The Applicant has [specified occupational registrations].

3. The Tribunal clarified with the Applicant, at the commencement of the hearing, that his concerns in returning to PNG relate to tribal conflict and fearing harm by rival members of a different clan. Although the Tribunal gave the Applicant the opportunity to explain his claims, the Applicant did not take the opportunity to provide the Tribunal with any further detail.

4. The Applicant provided a copy of the delegate’s decision record to the Tribunal. The decision record traverses the Applicant’s claims as made to the Department. The Applicant says that his claims before the Tribunal are the same. In the absence of any greater particularity from the Applicant about his claims, the Tribunal has extracted the relevant passages from the delegate’s decision record, where the delegate sets out the Applicant’s claims:

   Parent’s Deaths / Tribal Conflict – 1996/1997

   When questioned as to why he feared returning to Papua New Guinea, the applicant stated that he feared being harmed as a result of tribal violence between his tribe, the [Tribe 2], and the [Tribe 1], and stated that the [Tribe 1] would seek to persecute him if he returned to Papua New Guinea. The applicant stated that there have been killings in his village, including members of his family, and believed if he returned to his village he might be viewed as a threat.

   The applicant stated that from birth up until he was approximately [age] years old, he resided in his home village of [Village 1] with his parents. The applicant stated that when he was [age] – approximately 1996 or 1997 – a tribal fight broke out in his village regarding tensions with the 1997 Papua New Guinea national election. The applicant state that both his mother and father were killed in this tribal fight as a result of their support for a particular electoral candidate. The applicant’s statements regarding this incident were notably vague – when asked to elaborate on the incident in question, the applicant paused for a lengthy period of time, before eventually stating that people from [Tribe 1] thought that his father was “helping the election,” therefore came to his village to fight. The applicant stated that following his parent’s deaths in the tribal conflict of 1996/1997, he moved from [Village 1] to [Town 1] for two years, before returning subsequently returning to [Village 1].

   I have been unable to locate any country information to confirm that tribal conflict occurred in [Village 1] during or around the time of the 1997 national elections, however I note that country information more generally indicates that political and tribally motivated violence can come to the fore during election periods, and numerous sources have reported on various tribal conflicts that have occurred within the [wider Village 1] region. In this regard, I consider it generally plausible that electoral violence flared up in the applicant’s home village in 1996/1997, however I find his account of how this resulted in his parents’ deaths vague and insubstantial. Nonetheless, I have given consideration to the fact that the applicant was a minor during this time, and that the incident in question occurred over 20 years ago, thus there are reasonable reasons as to why his recollection of these events would be incomplete or lacking. As such, I am willing to accept that electoral violence occurred in the applicant’s village in 1997, and that his parents were killed in that same incident.

   Incident in Lae – 2013

   The applicant was questioned as to whether [Tribe 1] ever sought to harm him personally following the death of his parents in 1996/1997, to which he stated that there was one incident which occurred at some stage in 2013 when he travelled to Lae to apply for his Australian visa. The applicant was questioned as to why he was lodging his application in Lae as opposed to Port Moresby where the Australian High Commission and Australian Visa Application Centre (AVAC) is located, to which the applicant stated that he was told he had to apply via an agency in Lae. It is notable that the only authorised AVAC in Papua New Guinea is located in Port Moresby, and visa applications cannot be lodged at the Australian Consulate-General in Lae.

   The applicant stated that he was staying a church in Lae who had offered him accommodation, and there was a group of boys who were staying in the area nearby. The applicant stated that these boys saw him one night and asked if he was staying at the church, and when the applicant stated he was, the boys threatened that he should get out of the area, and that he could not stay. The applicant was questioned as to how this incident related to tribal conflict in [Village 1], to which he stated that he felt the boys in question were collecting information about him and where he was living. The applicant was questioned as to whether he had ever seen these boys before, to which he stated he had not, but he felt threatened by the way they had approached him. The applicant was questioned as to how these people would have known who he was or which tribe he was from, given that he had never lived in Lae previously, and was by his own statements, briefly visiting to lodge a visa application. The applicant stated that he thought these people had been following him to try and get his information, and find out where he was going. The applicant stated that they may have been bribed by his tribal enemies, and he felt they could harm him at any time.

   It was put to the applicant that the tribal conflict that his parents were allegedly killed in occurred in the mid-1990s, and he was now claiming that 15 to 20 years later, his tribal enemies had bribed a group of boys to collect information about him in Lae – a city he had never previously visited or lived in, and was only travelling to for a brief time. The applicant was questioned as to how or why, within such a context, his tribal enemies would bribe this group of boys in Lae to ‘collect information’ about him. The applicant stated that the way the boys were acting suggested they were monitoring him, and that his tribal enemies may believe that now he has grown up he might seek to take revenge against them for the death of his parents, therefore they would be trying to track him down to prevent him from doing so.

   Overall, I find the applicant’s statements regarding this incident to be lacking in substance and general plausibility. I do not accept the applicant travelled to Lae in 2013 for the purpose of lodging his Australian visa application, as there is no authorised AVACs in Lae, and visa applications cannot be lodged at the Australian Consulate-General in Lae. I find the applicant’s account of his interaction with this group of boys to be vague, and find it to be a farfetched notion that they would have been paid informants to [Tribe 1], seeking to ‘collect information’ about the applicant’s whereabouts during his brief visit to Lae. I find it implausible that [Tribe 1] would be paying informants to collect information about the applicant almost 20 years after the tribal fight in which his parents were killed, having not made any previous attempts to locate and harm him. I consider that if the applicant was genuinely viewed as a ‘threat’ by [Tribe 1], and they were aware enough of his movements and location to have informants approach him during a brief visit to Lae, they would have just as easily had him killed if that were their intent.

   Accordingly, I do not accept the applicant’s claim to have been monitored and threatened by [Tribe 1] informants in Lae during 2013.

   Incident in Port Moresby - 2013

   When questioned as to whether there were any other incidents in which [Tribe 1] had targeted or monitored him (aside from the aforementioned incident in Lae), the applicant stated that following the 2012 national elections, there was a fight occurring between the tribes in his home area, and the tribes were following people who they believed would ‘take grievance’ on behalf of their own tribes. The applicant stated that during this time (an unspecified period in 2013), he was attacked by a group of [Tribe 1 members] in the Port Moresby suburb of [Suburb 1].

   When asked to elaborate on this attack, the applicant stated that he was at a [business 1] in [Suburb 1], and could see a group of people who were the ‘enemy’ who had come to harm him. When asked to further explain what he meant by this, the applicant stated that a group of ‘random guys’ came into the [business 1], and he could see by their facial features alone that they were from [Tribe 1]. When asked if he had ever met these people previously, the applicant stated that he had not, but could tell they were [Tribe 1]. The applicant stated that he had a feeling these people might do something to him, therefore he left the [business 1] and went back to the house he was staying at. When asked if anything further occurred, the applicant stated that he just left the [business 1] and returned home to tell the people he was staying with.

   It was put to the applicant that he had described this incident as being an ‘attack,’ whereas by his description of the events, it appeared more so that he had noticed a group of people from a rival tribe in a [business 1], which made him feel intimidated, so he decided to leave. It was put to the applicant that the described circumstances did not appear to be an ‘attack,’ and the applicant agreed that he was not actually attacked on this occasion. The applicant was questioned as to whether there were any other occasions on which he had been attacked, to which he stated there were not.

   Whilst I am willing to accept that a group of people who appeared to be from [Tribe 1] walked into the same [business 1] as the applicant in Port Moresby in 2013, I do not accept that the applicant was attacked in any way by these people, and there is no information before me to indicate that that the persons in question were there to monitor, threaten, or otherwise harm the applicant. I find that if it were the genuine intent of these alleged [Tribe 1] to harm the applicant in any way, they had ample opportunity to do so, and did nothing. In this respect, I find the applicant’s claim to have been attacked by [Tribe 1] in Port Moresby to be substantially embellished for the purpose of strengthening his application for a Protection Visa.

   Incident in [Village 1] - 2010

   It was put to the applicant that the substance of his written claims sent by email on 27 September 2018 were notably different to his verbal testimony at interview. It was put to the applicant that he had been questioned at length as to what had happened to him personally since the death of his parents in 1996/1997, up until the time he came to Australia, to which he had only mentioned the incidents in Lae and Port Moresby, whereas his written statement stated that he was chased out of [Village 1] into [Town 1] in 2010, and almost killed in the process. It was put to the applicant that in spite of relevant questioning, he had not mentioned being chased out of [Village 1] or almost killed in 2010, and from the information he had provided at interview regarding his residential and marital history, it didn’t appear that he even resided in [Village 1] during this period – the applicant had earlier stated that during this period he had been moving back and forth between living in [Town 1] and Port Moresby.

   The applicant responded initially that people were doing this to him when he was moving around in Lae in Moresby. When directed back to the fact that his statement mentioned him being chased out or [Village 1] and nearly killed in 2010, the applicant stated that he was in fact chased out of [Village 1] in 2010. The applicant stated that he had been living in [Town 1], and travelled to [Village 1] to vote in the 2007 election, the results of which sparked a tribal fight in [Village 1], and he returned to [Town 1]. When questioned as to how the 2007 election result impacted upon his safety, the applicant stated that the basis of the outbreak of violence in [Village 1] in 2010 related to his parents’ support of a particular candidate in the election. It was put to the applicant that he had previously claimed that his parents had died in 1996 or 1997, and was questioned as to how their electoral activities could have been relevant to the events of 2007 – 2010. The applicant was unable to provide a coherent response, stating that it was the same “election thing.”

   When questioned as to where he was residing from 2007 to 2010, the applicant stated he was residing in [Town 1], but also that he was going to and from [Village 1] at various stages to monitor what was happening, as the fight was escalating. The applicant stated that in 2010 whilst he was in [Village 1], a group of [Tribe 1] members attacked the village with firearms, and he ran away along with a number of other villagers to [Town 1]. The applicant stated that following this, he sought to reside in Port Moresby and Lae because he feared for his life in [Town 1], and had been warned that people would try to kill him if he stayed there.

   The applicant was presented with a number of images taken from his [social media] page, which depicted him in late 2013 and early 2014 attending various Christian ministry events with [Agency 1] in [Town 1]. It was put to the applicant that it appeared he was actively involved in a number of quite public Christian ministry camps and activities whilst residing in [Town 1] during this time, and did not appear to be living in hiding in Port Moresby for fear of being attacked by tribal enemies, as had been claimed. It was put to the applicant that this information seemingly contradicted his claim to face imminent risk of tribal violence in [Town 1]. It was put to the applicant that this information made me consider that he was in fact residing in [Town 1] for some time up until his travel to Australia, which he acknowledged as being the case. When invited to provide comment on the adverse information and credibility concerns presented, the applicant declined to respond.

   In consideration of the information outlined above, I note that the applicant not only failed to initially recall the claims submitted in his statement of 27 September 2018, but also demonstrated great difficulty in providing a coherent and consistent account of his claim to have been chased out of [Village 1] and nearly killed by [Tribe 1] in 2010. Notwithstanding the aforementioned country information confirming the prevalence of tribal conflict in the [Village 1] area, I find the applicant’s vagueness and inconsistency at interview suggests that he was fabricating or substantially embellishing his verbal testimony of this incident, a finding further supported by the contradictory information from his [social media] page which demonstrated that he was residing freely and openly in [Town 1] around the time of his departure to Australia. For the reasons stated above, I find the applicant’s claim to have been attacked and chased out of [Village 1] by tribal enemies in 2010, and to have been in imminent danger of targeting by [Tribe 1] in [Town 1], to have been fabricated for the purpose of strengthening his visa application, and I do not accept this claim to be credible.

1. The Tribunal recognises that in merits review, the Tribunal must form its own, independent conclusions. The Tribunal has carefully considered all of the evidence before it, with an independent perspective and without placing weight on any of the conclusions reached by the delegate. The Tribunal has also given the Applicant every opportunity to provide evidence and to make submissions in relation to his claims, so that the Tribunal could make a fresh assessment of his claims.

Country information

1. The Tribunal has not located, and the Applicant has not provided, country information to specifically confirm tribal conflict between [Tribe 2] and [Tribe 1].

2. The Tribunal has considered the most recent Department of Foreign Affairs and Trade Country Report for PNG, dated 6 September 2022. In relation to “Inter-Group Violence,” the DFAT Report provides the following information:

   2.27 Tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.

   2.28 Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced.

   2.29 Land disputes are a common catalyst for unrest in PNG. Ninety-seven per cent of land in PNG is customarily held. Conflict typically escalates from territorial disputes into violence, with some incidents being ‘payback’ for previous incidents. While inter-tribal conflict has historically occurred, especially in the Highlands region, observers suggest that such violence has become markedly worse in the last few years due to the increasing prevalence of high-powered firearms, the willingness to target the elderly, women and children, and the fact that conflict is less governed by customary law (which served to limit the extent and targets of violence) than in the past. Inter-tribal fighting often results in the destruction of communal property and services (such as health clinics, schools and transport infrastructure) and in substantial numbers of internally displaced persons. Sources report national and provincial governments are disinclined to rebuild after such destruction.

   2.30 Observers have suggested that increased fighting in the Highlands should be viewed as a resort to self-help through violent means, in the absence of effective government alternatives for managing disputes peacefully. Police capacity and willingness to prevent and investigate tribal fighting is typically limited (see Police). In Hela province, which has a population of 400,000 people, there are just 83 Royal Papua New Guinea Constabulary (RPNGC) officers, as noted by Prime Minister Marape in response to the July 2019 massacre. Often the RPNGC are outnumbered and outgunned by warring groups and can only intervene at significant personal risk.

   2.31 Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there.

   2.32 DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG.

3. The Tribunal accepts that tribal conflict in the Applicant’s home area (either [Town 1] or [Village 1]) is commonplace; and (2) considers it possible that official reporting of tribal conflict in Southern Highlands may be limited.

The Applicant’s evidence at hearing

1. The Applicant told the Tribunal that he does not have any family remaining; and he said that he does not have any children. The Applicant said that he is married to another PNG citizen, [named], but is not living with her at present. He said that they were not separated.

2. The Applicant began working with [Business 1] very recently, as [an occupation 1], and is living in [Town 2], Queensland. Both the Applicant and his witness, [Friend A], gave evidence about the hardship he had experienced in the past year or so, due to unstable employment, and lack of housing. The Applicant says he “doesn’t have anything,” and that he would find returning to PNG very difficult, after having now lived in Australia for so long.

1. The Tribunal asked the Applicant why, given the events that he claims form the basis of his need for protection, all of which pre-date his arrival in Australia in 2014, he did not apply for protection when he first arrived in Australia. The Tribunal also asked the Applicant to explain why he returned to PNG in 2015, if he was in fear of tribal conflict as claimed. Instead, the Applicant waited three years to claim protection.

2. The Applicant told the Tribunal that he did not apply for protection earlier as he was on a student visa, and he mentioned that his brother passed away in 2015. He gave evidence that he “started getting threats from the community and people,” and that he came back to Australia and then applied for protection. The Applicant’s evidence was extremely vague and lacked any credible detail.

3. The Tribunal takes the view that the delay in the Applicant’s applying for protection was because no other visa pathways were available to him. As the Applicant could no longer afford to study, he would not have had the option of remaining on a student visa. This strongly suggests to the Tribunal that the Applicant was not in genuine fear, but rather sought to extend his time in Australia.

4. The Applicant expressed concern about having a place to live, and work, if he returned to PNG. The Applicant’s focus at the hearing was on the life he had in Australia, and the opportunities he would have if he remained here. To seek better opportunities is human nature, and the Tribunal understands that the Applicant would like to remain in Australia and enjoy what he describes as a better life. This does not, however, mean that he is entitled to protection in accordance with the Act.

5. The Tribunal accepts that the Applicant’s parents died when he was young, but in the absence of any corroborating evidence, is not prepared to accept that their deaths were the result of tribal conflict. The Tribunal has very serious questions about the credibility of the totality of the Applicant’s claims. However, even if the Tribunal accepted them, the events described are more than 10-years, and in the case of his parent’s death, date back to 1996-97. He could not give any specific detail about why he feared targeted tribal conflict from [Tribe 1], except that he was worried about this.

6. The Applicant gave absolutely no detail relating to his claims and relied upon the claims as set out in the application, his departmental interview, and the delegate’s decision record. It is the Tribunal’s impression that he did not recall any of his earlier claims, except that he says his parents and brothers died, and he feared tribal conflict. The Tribunal accepts that the Applicant’s memory might be such that he has not have a recollection of exact dates. The Tribunal also accepts that the Applicant might just generally be a poor historian, and unable to recall details of stressful events. However, the cumulative effect of the Tribunal’s concerns is that it is unable to be satisfied as to any of the Applicant’s claims.

7. The Tribunal accepts that there is a high incidence of inter-tribal fighting in Papua New Guinea. There is no evidence before the Tribunal that credibly suggests that the Applicant would be in any danger returning. The Applicant’s own evidence on this point consists of a blanket assertion that he’s worried and that he will be targeted. However, the Applicant has safely travelled to and from PNG whilst on a student visa.

8. As a result of the Tribunal’s cumulative concerns, as canvassed in these reasons, the Tribunal has formed the view that the Applicant’s evidence is vague and unreliable. The Tribunal does not accept that the Applicant has been targeted as a result of tribal conflict. It follows that the Tribunal does not accept that the Applicant has ever faced, or would face, harm in Papua New Guinea related to tribal fighting in his home village following his parents and brothers’ deaths, or for any other reason. The Tribunal is not satisfied that the Applicant genuinely has a subjective fear of being persecuted on this basis if he returns to Papua New Guinea and finds accordingly. The Tribunal is also not satisfied that there is a real chance or real risk that the Applicant would suffer any harm on this basis at all, whether serious or significant, if he returns to Papua New Guinea.

9. The Tribunal is therefore not satisfied that the Applicant has a well-founded fear of persecution for one of the reasons mentioned in s 5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Papua New Guinea, there is a real risk that he will suffer significant harm.

Conclusions

1. Based on the assessment of evidence and findings set out 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).

2. 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).

3. There is no evidence before the Tribunal that suggests that the Applicant satisfies s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s 36(2)(b) or (c).

DECISION

1. The Tribunal affirms the decision not to grant the Applicant a protection visa.

Bridget Cullen
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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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.

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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.

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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.

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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.

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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.

1. 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.

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1. Protection visas – criteria provided for by this Act

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1. 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.

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