2316946 (Refugee)

2316946 (Refugee) [2024] AATA 2770 (14 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2316946
COUNTRY OF REFERENCE: Papua New Guinea

MEMBER:James Lambie
DATE:14 May 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 May 2024 at 9:39am
CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea – came to Australia to work and send money back – tribal violence – lack of detail provided – concerns with authenticity of supporting documents –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 2 September 2023. 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 under s.36 of the Act and subclause 866.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 20 October 2023.
The applicant appeared before the Tribunal on 20 February 2024 and 16 April 2024 to give evidence and present arguments.
The applicant remained unrepresented throughout the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a [age]-year-old citizen of Papua New Guinea. The applicant has a primary school level of education completed in Port Moresby. The applicant has been employed as a [occupation] from March 2012 to December 2022 in Port Moresby. The applicant worked as a [farm hand] in New South Wales from 15 December 2022 to 30 August 2023. The applicant is currently unemployed and is financially supported by his savings.
The applicant was granted a Temporary Work (International Relations) (subclass 403) visa on 8 December 2022. The applicant arrived in Australia on [date] December 2022. He applied for the protection visa the subject of this application on 2 September 2023.
Claims
The applicant’s initial claims are set out in the protection visa application dated 2 September 2023 contained in the Departmental file [number deleted]. The claims are summarised by the delegate as follows:
·The applicant came to Australia to work and send money back to Papua New Guinea. There are few jobs available in Papua New Guinea, and pay is low.
·Australia has economic stability while Papua New Guinea does not. The money he earns in Australia will be able to help his family back in Papua New Guinea.
·If the applicant is returned to Papua New Guinea he will not be able to get work, and will not be able to support himself or his family.
·There is no assistance to be found in Papua New Guinea as all people there are in the same situation.
In his statement dated 30 January 2024, the applicant changed his claims. His claims to the Tribunal were as follows:
·as his subclass 403 visa came close to expiry, he found that he was unable to return to PNG because of tribal violence in Enga province, which also meant that he would be unable to relocate safely to Port Moresby;
·a co-worker by the name of [Mr A], who was also from Enga province, told him that he would be able to put him in touch with a lawyer who could help him to apply for a protection visa;
·he transferred $700 to [Mr A] to pay the lawyer and lodged his protection visa application, but now believes that [Mr A] completed the application himself and kept the money. Until he received the refusal notification, he was not aware of the contents of the protection visa application;
·his two elder brothers were killed in tribal violence on [date] October 2022;
·he has witnessed tribal violence in Enga on numerous occasions, and carries numerous scars from being speared;
·tribal violence in Enga Province is endemic and escalating, and there is no indication that it will stop in the foreseeable future;
·because there are many members of the enemy tribes living in Port Moresby, it is not safe for him to relocate there;
·because the enemy tribe burnt down his village and destroyed its gardens, he would have no means to support himself if he returned to PNG.
Evidence presented prior to the hearing
The applicant produced to the Department of Home Affairs (the Department) the following documents:
a.his protection visa application form; and
b.his passport issued on [date] 2021.
The applicant produced to the Tribunal the following documents:
a.a copy of the delegate’s decision;
b.his statement of 30 January 2024;
c.a bundle of undated photographs depicting a tribal assault on a village and its aftermath;
d.screenshots of text message exchanges with a [Mr B] , dated 25 and 26 December 2023;
e.screenshots of text message exchanges with [Mr A], dated circa 14 January 2024;
f.a screenshot of a bank transfer to [a named person], dated 1 September 2023;
g.a screenshot of a bank transfer to [a named person], dated 20 October 2023;
h.a further bundle of undated photographs depicting a tribal assault on a village and its aftermath;
i.four undated videos depicting a tribal assault on a village and its aftermath; and
j.his undated submission attached to an email dated 19 February 2024.
Evidence presented after the hearing
After the hearing of 20 February 2024, the applicant produced to the Tribunal the following documents:
a.a letter from Mr [C], chairman, [an] Association, dated 28 February 2024;
b.a letter from Pastor [D], [Church 1], [City 1], dated 22 February 2024;
c.a letter from [Mr E], OIC CID, [Royal Papua New Guinea Constabulary], dated [October] 2022;
d.“Medical certificate of death” for [Mr F], dated [October] 2022; and
e.“Medical certificate of death” for [Mr G], dated [October] 2022.
After the hearing of 16 April 2024, the applicant produced to the Tribunal the following documents:
a.a letter from Mr [C], chairman, [an] Association, dated 22 April 2024;
b.a letter from pastor [D], [Church 1], [City 1], dated 22 February 2024;
c.a letter from [Mr E], OIC CID, [Royal Papua New Guinea Constabulary], dated [April] 2024; and
d.“Medical certificate[s] of death” dated 18 April 2024 for:
i.[Mr F];
ii.[Mr G];
iii.[name];
iv.[name];
v.[name];
vi.[name]; and
vii.[name];
all alleged to have died on [date] October 2022.
These documents, and the reason for the submission of new iterations of them, are discussed further below.
Country of reference
The applicant claims to be a citizen of Papua New Guinea. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Papua New Guinea is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
Hearing
[The applicant, Mr H] first appeared before the Tribunal on 20 February 2024 to give evidence and present arguments.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection Visa, the Tribunal discussed with the applicant that to be granted a Protection Visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Papua New Guinea. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Papua New Guinea. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Papua New Guinea.
The Tribunal discussed his claims as revised in his submission of 30 January 2024. It asked if his claims were correct, complete, and up to date. He said that they were and that he did not need to add to them. The Tribunal asked if he wished to maintain the claims detailed in his protection visa application. He said that he was not involved in the preparation of the visa application and was not aware of its contents. The Tribunal asked if he was aware of the delegate’s decision record. He said he was, but that he had only received a copy of the application recently and had not yet read it.
The Tribunal first took [Mr H] to his claims in relation to the delay in making his protection visa application. He said that the protection visa application was arranged by [Mr A], who was from an enemy tribe and probably did not wish the application to succeed. He said he did not know him by any name other than ‘[Mr A]’.
The Tribunal asked how, if he was not involved in the preparation of the protection visa application, his personal details came to be in it. He said he had not spoken to the lawyer who [Mr A] had told him was preparing the application but had provided some details to [Mr A] to be passed on to the lawyer. The Tribunal said that the screenshots he had provided showed that he had given [Mr A] his email address and that [Mr A] had said he would pass it on the lawyer so that they communicate directly. It asked if he had the communications with the lawyer. He said the lawyer had never contacted him directly: he had provided the necessary details to [Mr A], with whom he was sharing a house. The Tribunal suggested that the details in the application included his employment history, his last address in Port Moresby, his education history, and his claims. It asked if he and [Mr A] had filled in the application together. He said that he gave all of these details, other than the claims, to [Mr A].
The Tribunal asked if there was anything in his text message history that might enable the Tribunal to fix the date of these conversations. It said that was important if weight were to be given to the exchanges. For example, there was an exchange with [Mr A] with the date 14 January. It asked if that was 14 January 2024. The Tribunal suggested that this, therefore, was not related to lodging the application because he had already applied to the Tribunal for review by that date. It said there were no dates on the other screenshots, other than the money transfers to [Mr A], of $700 on 1 September 2023 (the day before the lodgement of the visa application), and of $500 on 20 October 2023 (the day of the lodgement of the application for review). He accepted that this was correct.
The Tribunal asked if there had been any contact with the lawyer. He said there had not. The Tribunal asked if there had, in fact, been no lawyer and that [Mr A] had just kept the money. He said he suspected this was correct.
The Tribunal took him to his text message exchanges with [Mr B] of about 25 and 26 December 2023. He said that [Mr B] is his brother. The Tribunal asked where the videos and photographs contained in that exchange had originated. He said he did not know. He said [Mr B] may have taken some of them himself. The Tribunal asked if he had a statement from him. He said it was complicated to contact him. The Tribunal indicated that he was self-evidently in contact with him by phone and suggested that it would be helpful to have a statement from him. He said [Mr B] had offered to do so, but nothing had yet been received.
The Tribunal asked if there was any material available to confirm that the events mentioned in the text messages occurred on or about 25 or 26 December 2023. He said there were the photographs. The Tribunal said that there was no way to confirm where and when those images were made, because such images are widely shared on social media. Further, the Tribunal needed to confirm that the screenshots were a genuine exchange between him and [Mr B] , and that [Mr B] was the person [Mr H] claimed him to be. The Tribunal indicated that it also considered it curious that the exchanges were in English and did not identify the attackers. It suggested that, because the text messages claim that police and army personnel were killed in the attack, that it would be expected that there would be extensive media coverage of the event.
The Tribunal indicated that it was aware there had been an incident in Enga Province on 18 or 19 February 2024 (a day or two before the hearing) but that it had no material to relate it to his claims.
The Tribunal further indicated that his claims about his brothers were not supported by the family details he had provided in his protection visa application. It suggested that some supporting information would be needed if his claims in that respect were to be accepted.
The Tribunal said that, for the reasons it had described, it had some difficulty with the reliability of the evidence before it. There had also not been any attempt to reconcile his failure to apply for a protection visa until just before the expiry of his subclass 403 visa with his claims that his brothers were killed in intertribal violence just two months before his arrival in Australia. There was also country information to the effect that tribal violence in Enga Province is localised and that it does not generally extend to Port Moresby. It suggested that, if he took the Tribunal’s comments into account, he might benefit from an opportunity to provide additional and better evidence for his claims. It said that, because of the events of the previous day, which may be relevant to his claims, it was inclined to give him the opportunity to gather the evidence and present his case in a way that gave the best support to his claims. It suggested that church leaders, the local hospital, the police and PNG media, if not international media, would all know of the events he had claimed, and there would also be official records, such as death certificates. He said that he understood. The Tribunal adjourned the hearing to allow the collection of relevant evidence.
The hearing resumed at 9.30am on 16 April 2024. In the meantime, [Mr H] had submitted the material listed at paragraph 19 above.
The Tribunal took [Mr H] to the material he had submitted. The Tribunal indicated that, on the material he had submitted, it was inclined to accept his claims that [Mr A] had deceived him about the preparation and lodgement of the protection visa application, which were matters relevant to the late addition of his claims.
The Tribunal asked where he had obtained the death certificates. He said they had come from [a] Hospital. The Tribunal asked if he had any material showing how they had been transmitted to him, for example, a covering letter or an email. He said he had an email. The Tribunal asked if it was from the hospital or the registry. He said it was from member of his church, who had obtained the certificates from the hospital. The Tribunal said that the reason it asked was that it had concerns that the certificates were not genuine: in Papua New Guinea, death certificates are issued pursuant to the Civil Registration Act 1963 while these documents were expressed on their face to be under the “Cival [sic] Registration Act of Death”; it was not in the form specified under the Act, the deaths had not been referred to the coroner as required for unnatural deaths, parts of the certificate had been left blank, and the causes of death were not professionally expressed (“tribal violence”, “burned”, “slaughtered”). The Tribunal indicated that, if these documents were not genuine, their submission may have adverse consequences for his application.

The Tribunal next took [Mr H] to the letter from the Royal Papua New Guinea Constabulary. It indicated it had concerns about whether this document was genuine because the letterhead was off-centre and not in conformance with samples of genuine RPNGC correspondence available to the Tribunal, no email address was provided, and despite being expressed to have been issued by the officer-in-charge of the CID, the author had not designated his rank and had stamped it “Motor Squad”. The Tribunal said that, further, it had noted that the letter was dated [date] October 2022, the very day upon which the tribal massacre was alleged to have occurred. It was addressed “to whom it may concern”, i.e., for a private purpose not as a police report, and the contents were largely directed to [Mr H]’s claims, focussing primarily on his brothers in the narrative and merely listing the other alleged victims and expressing opinions about the safety of [Mr H] returning to the area.
The Tribunal took [Mr H] to the letters from Pastor [D] and [Mr C]. It said it had concerns that these letters had a common author, owing to similarities in expression and style. It noted that, for example, both letters state that [Mr H] “is a young man who is known to me since his child wood [sic]”.
The Tribunal indicated that these concerns cumulatively would likely result in an adverse conclusion about the authenticity of the documents. At the very least, the Tribunal was unlikely to give them any weight, which would mean that there was very little evidence in support of his claims that could be accepted. It might also result in a conclusion that his claims themselves had been fabricated, and there may be further consequences from the Department’s perspective if it took the view that bogus documents had been provided in furtherance of a visa application.
The Tribunal offered [Mr H] an adjournment to consider its observations, to take advice, and/or to obtain information to clarify the provenance of the documents.
The hearing resumed at 10.39am. [Mr H] told the Tribunal he had spoken to the person who had coordinated the collection of the documents in PNG and had been told that the documents were genuine. The Tribunal reiterated its concerns but said that if he chose to maintain that the documents were genuine, the Tribunal would factor that assertion into its decision. It indicated that, should it find the documents were not genuine, it would give significant weight to that finding adverse to the application. He asked for time to explain the submission of the documents and any further documents that supported his claims. The Tribunal said that, if he was submitting further documents, he should also explain how he came to provide the documents he already submitted. It cautioned that any further documents submitted must be authentic. The Tribunal allowed 14 days for this to occur.
On 24 April 2024, [Mr H] submitted the documents listed at paragraph 20 above. With these, he made a submission dated 23 April 2024 seeking to address the Tribunal’s concerns about the documents and to explain the provenance of the new documents he had submitted. The submission was:
I, [Mr H], would like to explain, regarding the proof documents that have been sent to you on 24 March 2024. I have sent these documents as my reference to qualify that and badly affected by political and tribal issues in Enga province, Papua New Guinea. The documents are Pastor reference letter, community reference letter, police reference letter and death certificate of my two brothers from the doctor. In the paragraph below I will further elaborate why my documents are not reaching your expectation.
1.    (Pastor Reference and Community Reference)
Regarding these two references, it may look similar when going through all the wording, sentences, paragraphs, and main body of the reference. But the truth is, they are two different person writing these two-reference letter for my request as a youth member of the church and as a community member to that particular community. I am pretty sure they both participate to write down my reference letter as per my request. Therefore, I have no doubts or questions in my mind regarding this two-reference letter.
2.    (Police Reference Letter)
For the police report, I informed my uncle to request [Mr E] the officer in charge (OIC) of criminal investigation division (CID police [to] write my reference because he is from the same district that I come from which is [name of the district]. He did inform and put down my information that I told him, but unfortunately [he] haven’t put down any description about himself and his profession. Even he hasn’t mentioned anything about the situation and my personal well-being if I returned to Papua New Guinea. To be honest he must have done the report about the people who have been killed including my two elder brothers.
3.    (Death Certificate)
For the death certificate, I informed my same uncle to engage a doctor in [a] Hospital, but he somehow informed a core worker in the hospital and all the necessary information was not completely filled. If a doctor filling that form, then there shouldn’t be any problem at all, but because that core worker filling the form, he hasn’t managed to fill every information.
I do respect and deeply apologise for all those materials that are in front of you Senior. I desperately needed this information and requested for them to assist me, but they’ve provided that are not to the required standard. Once again, I’m sorry for everything.
However, I recollected all the necessary documents which I understand will be of the required standard…
The documents and submissions are discussed below.
Assessment of claims and evidence, and findings
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, and Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
As the Tribunal discussed with [Mr H] at the hearing on 20 February 2024, it had concerns about the reliability of the material that he had submitted relating to the incidents of tribal violence to which he claimed his brothers fell victim in 2022, and the events said to be the subject of the text message exchanges with [Mr B]. Although the events were said to have taken place in remote, or relatively remote, areas of Enga Province, there is substantial local and international media interest in such incidents. Incidents, some similar to and some considerably more minor than, the ones described by [Mr H] have been widely reported[3]. The Tribunal, however, has been unable to locate any report of the 2022 incident. [Mr H], despite the Tribunal’s invitation, has failed to provide any media report. Had the incident occurred as claimed and have been the subject of any media reporting, it would have been well-known to him and his family.
[3] E.g., Concerns for violence grow in Enga as four dead in Lagaip by-election | RNZ News (17 November 2023); Dozens killed and thousands displaced in election fighting in Papua New Guinea, UN says | Papua New Guinea | The Guardian (22 July 2022)
The material provided to the Tribunal derived from the text message exchanges with Mr [B] does not relate to the 2022 incident, but seemingly to an incident in or about December 2023, to which the Tribunal can locate no independent reference. The Tribunal has concerns about the provenance and authenticity of this text message exchanges, which are provided only in screenshot format and without any metadata and are also unsupported by a statement or other evidence from Mr [B]. The exchanges are also in English, which would seem unlikely in communications between brothers or close relatives from Enga Province. [Mr H] did not take any action on the Tribunal’s indications of concern about the reliability of this material, or its suggestions as to authenticating its provenance. The Tribunal therefore gives this material no weight.
The are further credibility concerns with the claims and evidence relating to the murder of [Mr H]’s brothers in 2022. These will be addressed in turn.
Nomination of family members
In his protection visa application, [Mr H] did not name any family members, living or dead. This was pointed out to him at the hearing on 20 February 2024. The Tribunal has accepted that his protection visa application was prepared by [Mr A] with very limited instructions or input from [Mr H] and therefore does not find that his failure to name any family members is an inconsistency in his evidence. However, this omission has not been corrected and, therefore, a possible source of some support for his claims is not available to him.
Death certificates
For the reasons discussed with [Mr H] at the hearing on 16 April 2024 (see paragraph 39 above), the Tribunal does not consider that the first tranche of death certificates can be given any weight. [Mr H] seems to have accepted this by reason of the explanation tendered at paragraph 3 of his submission of 23 April 2024, which indicates that the certificates were prepared by a “core worker”, presumably a junior hospital official, rather than a doctor.
The Tribunal cannot give any credit to [Mr H]’s explanation. On the face of the first tranche of death certificates, they are certified by a “[a named] medical officer” and not by anyone who could be identified as a “core worker”. On his explanation, therefore, the problem is not one of bureaucratic error, or of an official exceeding his or her authority, but either of forgery or a complete mischaracterisation by [Mr H] in his explanation of the circumstances in which the death certificates were prepared.
The Tribunal, however, does not consider the second tranche of death certificates to be any more reliable than the first. The second tranche of certificates are still headed “Cival [sic] Registration Act of Death” and are suspect for that reason alone. Further, the certificates indicate that the medical practitioner certifying the deaths first viewed the deceased on [date] October 2022, but did not complete the certification until 18 April 2024. It strangely certifies that the medical practitioner last saw each of the deceased alive on the day of the incident, [date] October 2022. The Tribunal also notes that the cause of death for [Mr G] is given as “gun shot/burns” in the second certificate and “tribal violence/burns” in the first certificate. The cause of death for [Mr F] is given as “burns – third degree” in the second certificate and “tribal violence/slaughtered x 8 lacteration” [sic] in the first. The causes of death are thus inconsistent, without explanation. For these reasons, the Tribunal can give no weight to the second tranche of medical certificates.
Police letter
For the reasons discussed with [Mr H] at the hearing on 16 April 2024 (see paragraph 40 above), the Tribunal can give no weight to the letter from [Mr E] dated [date] October 2022. [Mr H]’s explanation (see paragraph 45 above) seems to proceed on a misconception of the Tribunal’s criticism of this letter and, to some extent, exacerbates them. One of the Tribunal’s concerns that the letter was dated the same day as the alleged date of the murders, at which time it was unlikely he was in possession of all of the facts and circumstances described (including the identities and dates of birth of several individuals said to have been burnt to death leaving few remains) or to have had time to compose a letter addressed substantially to [Mr H]’s protection claims, bearing in mind that [Mr H] had not at that time even left PNG.
[Mr H] has explained that the second letter from [Mr E], dated 19 April 2024, was created at his request. The Tribunal was not seeking [Mr E]’s expansion on [Mr H]’s protection claims, but rather an explanation as to how they came to be anticipated in the first letter. In any event, the Tribunal noting that [Mr E]’s signature block remains non-standard (citing neither rank nor service number) and is very suspiciously identical to the first letter (including the placement and fading of the signature itself, and the placement and impression features of the incorrect “Motor Squad” stamp), considers it unsafe to place any reliance upon it at all.
Letters of support
For the reasons discussed with [Mr H] at the hearing on 16 April 2004 (see paragraph 41 above), the Tribunal was not inclined to give any weight to the letters from Pastor [D] and [Mr C]. His explanation was that he believed they “participated” with each other in the preparation of their letters, despite one being in Port Moresby and one in [City 1]. His response was to have the authors resubmit their letters. The new letter from [Mr C] omits the reference to [Mr H]’s “child wood”. The new letter from Pastor [D] is simply a copy of his first letter, with the same date, but omitting the ink stamps.
The Tribunal considers it relevant that, despite both authors claiming to know [Mr H] and his family well for some years, they have failed to mention the murder of his brothers. Neither they nor [Mr E] mention the name of the tribe or tribes responsible for the violence, simply naming them as “enemies”. Whether or not the letters are genuine and reflect the personal views of their claimed authors, or either of them, they afford no insight into the facts and circumstances of [Mr H]’s protection claims and can be given no weight.
Country information
The most recent country information available to the Tribunal relevant to [the applicant]’s claims in respect of intergroup violence is as follows:
3.27 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.[4]
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea (6 September 2022), p 12

The Australian Institute of International A:ffairs reported in March 2022 that:
The changing nature of tribal violence
Fights in the Highlands are unpredictable. Battles are short and intense but reaching a ceasefire or peace agreement can take months or years — many fights remain “frozen” with no active fighting for long stretches. Without a peace agreement in place the fight may resume at any moment. For this reason, the ICRC and the PNG Red Cross build and maintain connections with local Highland communities, enabling us to undertake neutral humanitarian action when needed.
Traditional limit in fights
Just like the Geneva Conventions, there is broad agreement that killing ‘innocent’ people would lead to death or defeat in battle, either by incurring a generation of bad luck or becoming a target of the deceased’s spirit. Unfortunately, like in many situations of violence, in the heat of the fight these tacit rules are not always strictly followed, and communities have limited means of enforcing them.
A rule of similar importance is the principle that fighting can only take place on the lands of the clans involved in the fight. The ICRC has observed neutral clans marking their boundaries to prevent becoming involved. Rules and traditions of tribal fighting are primarily passed from father to son, or at clan meetings. However, many older community members feel that younger generations no longer respect these teachings.[5]
[5] Kobylinski, A. Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea, Australian Institute of International Affairs, 14 March 2022
On 18 September 2023, the Papua New Guinea Post Courier reported that:
A devastating tribal warfare that claimed more than 200 deaths and attracted international attention in the Wapenamanda district of Enga Province has come to an end.
The tribal fight between the Sau Walep, Lungupin, Itoejn Nenae and Yopo tribes with the Kandaolin, Mupapalu, Sikin, Wapukin and Palinau tribes which includes 14 wards in the Middle Lai constituency unanimously agreed to a ceasefire…
This tribal fight that has caused massive destructions of land and properties from Middle Lai, Aiyal Valley and Tsaka LLG, notorious killings which included dragging dead bodies and posting on social media among others has finally stopped…[6]
[6] ‘Fighting tribes agreed to ceasefire’, Frank Rai. PNG Post Courier, 18 September 2023
On 24 November 2023, The National reported that:
The Moke Nambka and Kopi Nopka tribes of Western Highlands have signed a ceasefire agreement to stop fighting.
The ceasefire agreement at the Mara House in Mount Hagen came into effect after fighting escalated that resulted in deaths on both sides and properties burnt…
Councillors from both Moge Nambka and Kopi Nopka tribes said they don’t want any more property destructions and loss of lives. They said the fight ended on Tuesday with the signing of the ceasefire agreement…[7]
[7] ‘ Tribes agree to stop fighting, sign ceasefire in Hagen’, Jacinta Dokta, The National, 24 November 2023.
State protection
5.5 The effectiveness of the RPNGC is severely limited by resource and staffing constraints. The police are routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. Sources reported that a trial in 2022 in Central Province for serious sexual offences against a child only went ahead because of NGO support in the form of petrol funding for the police and necessary accommodation provided to the complainant and her mother. One close observer of the RPNGC suggested that, while the full complement of police stood at around 5,500, only around one quarter of these were fully effective as police officers. RPNGC officers endure poor working and living conditions, including low remuneration; frequently need to assert themselves in violent environments, often without weapons or protection; have family/clan obligations to meet; and are generally poorly trained, particularly on human rights. Some police are also disinclined to act in response to some GBV, SARV or tribal fighting offences due to sympathy for the alleged perpetrator(s).
5.6 DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.[8]
[8] Department of Foreign Affairs and Trade, op cit, p 22
The Tribunal accepts that the assessment in the country information is that tribal violence is prevalent in Enga Province and the Highlands more generally, and efforts to police it have been largely ineffective. However, owing to the lack of detail provided by [Mr H], it has not been possible for the Tribunal to place his claims in any context, either by reference to the tribal groups involved or any reporting of the incidents he alleged. As indicated by the country information quoted above, there is considerable detail available in national and international reporting of tribal violence even in remote parts of Papua New Guinea. The reporting also indicates that it is possible for individual conflicts to be paused or brought to an end. While the reporting indicates that revenge attacks and the like may reach into the cities of Papua New Guinea from time to time, there is insufficient detail in [Mr H]’s claims to link them with any material available to the Tribunal, or even to place them into any context referable to material upon which it can rely.
However, the largest obstacle to the Tribunal’s acceptance of [Mr H]’s claims is in the material he has sought to present as evidence. In particular,for the reasons given above, the purported death certificates and the police letters do very substantial discredit to his case.
On consideration of all the evidence, and the country information, the Tribunal is unable to be satisfied that there is a real chance that on return to Papua New Guinea, either now, or in the reasonably foreseeable future, that the applicant would suffer serious or significant harm for the reasons he claims, or at all.
Cumulative claims
Having considered all of [Mr H]’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, the Tribunal finds that there is no real chance that he will suffer persecution by reason of intergroup conflict, if he returns to Papua New Guinea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Papua New Guinea. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered [Mr H]’s claims in terms of complementary protection.
Having regard to the findings of fact above, the Tribunal cannot accept that he left Papua New Guinea because he feared for his physical safety or that he cannot return to Papua New Guinea out of fear for his physical safety.
In view of these findings, the Tribunal is not satisfied that there is a real risk that [Mr H] will suffer significant harm for any of the reasons claimed if he returns to Papua New Guinea now or in the reasonably foreseeable future. Having considered all of his claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment, or he will be subjected to degrading treatment or punishment if he returns to Papua New Guinea now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future [Mr H] will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s. 5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Papua New Guinea that there is a real risk that he will suffer significant harm.
Overall conclusion
For the reasons 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).
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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit of a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Lambie
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2770

14 May 2024

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice