2317001 (Refugee)

2317001 (Refugee) [2024] AATA 916 (3 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2317001

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Wayne Pennell
DATE:3 January 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 January 2024 at 11:28am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – race – tribal violence – economic conditions – employment – fear of killing – peace agreements – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 424AA, 425
Migration Regulations 1994, Schedule 2
CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 5 October 2023.
The applicant claims to be a citizen of Papua New Guinea (‘PNG’) and applied for a protection visa.[2] When assessing the application, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there was a real risk he would suffer significant harm. Therefore, the delegate refused to grant the visa[3] on the basis that he was not a refugee as defined by the Act[4] and he was not a person in respect of whom Australia has protection obligations.[5]
[2]The applicant’s application was received by the Department on 1 September 2023.
[3]The delegate’s refusal was made on 5 October 2023.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
The applicant filed an application with the Tribunal for a review of the delegate’s decision.[6] At a subsequent time, the Tribunal sent a letter to the applicant and advised that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone. He was invited to attend an in-person review hearing scheduled for 29 November 2023. At a later time, he was again invited to attend a second hearing scheduled for 21 December 2023. The applicant accepted both invitations and attended the scheduled hearings which were conducted by remote conferencing means.
[6]On 23 October 2023.
He was not represented throughout the review process and both hearings were undertaken with the assistance of an interpreter in both English and Pidgeon English.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[7] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[8] That is, the applicant 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.
[7]Migration Act 1958 (Cth), s 36.
[8]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[9]
[9]Migration Act1958 (Cth), s 36(2)(a).
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.[10] 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.[11]
[10]Migration Act1958 (Cth), s 5H(1)(a).
[11]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[12] 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 the Act, which are extracted in the attachment to this decision.[13]
[12]Migration Act 1958 (Cth), s 5J(1).
[13]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[14] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[15] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[16]
[14]Migration Act 1958 (Cth), s 36(2)(a).
[15]Migration Act 1958 (Cth), s 36(2)(aa).
[16]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[17]
[17]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[18]
[18]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of PNG and provided a copy of his passport to authenticate this claim.[19] The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[20]
[19]The applicant’s passport was issued in PNG [in] 2009.
[20]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[21]
[21]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[22] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANT’S BACKGROUND AND CLAIMS
[22]Migration Act 1958 (Cth), s 499.
Background
On 16 December 2022, the applicant was granted a [temporary work visa]. That work visa was due to expire on 19 September 2023, and he arrived in Australia subject to the conditions of that visa [in] December 2022.
On 1 September 2023, the applicant lodged with the Department an application for a protection visa. It is noted by the Tribunal that at the time of that visa being lodged, the applicant had been in Australia for approximately nine months, and it was lodged 18 days before his work visa expired.
The personal information contained within the application outlined that the applicant was born in [Town 1], PNG. The information went on to say that he attended school at the [named] School between [year] and [year]. There is no information to suggest that he attended school after 2009. In respect to his employment in PNG, it was suggested that he was unemployed until he started working as an [Occupation 1] between 2014 and 2022, and his employer was based in Port Moresby. The application goes on to describe that prior to arriving in Australia, he resided in Port Moresby for all of his life.
It is noted that the applicant’s application explains that he did not receive assistance from an interpreter or anyone else in completing the application. In seeking protection, the applicant claimed that he came to Australia to work and send money back to Papua New Guinea because there are very few jobs available in PNG, and the pay is low.
He went on to say that Australia has economic stability while PNG does not and the money he earns in Australia will be able to help his family back in PNG. He claimed that if he was returned to PNG, he will not be able to get work, and will not be able to support himself or his family. He also claimed that relocation for his protection is not an option in PNG as there is no assistance to be found in PNG as everyone there is in the same situation.
The applicant had been given every opportunity by the Department to provide all of the details of his protection claims, however he did not provide a statement, statutory declaration or other evidence to support his claims for protection, except for a photograph of the inside cover of his passport showing his personal particulars and his photograph.
No interview was undertaken between the applicant and the delegate, and on 5 October 2023 the delegate refused the applicant’s application. As outlined above in these Reasons, on 23 October 2023 the applicant lodged an application with the Tribunal to review that decision.
Evidence provided to the Tribunal
Since then, on 25 October 2023 the applicant provided to the Tribunal a number of documents to the Tribunal. No explanation accompanied this documents and photographs to explain what they were or how they related to the applicant’s claims:
(a)A copy of an email sent from the applicant’s email account to another email account on 25 October 2023;
(b)Copy of a typed Letter of Recommendation from [Officer A];
(c)Photograph of a handwritten statement from [Brother B] dated 20 October 2023,
(d)Photograph of a handwritten statutory declaration from [Sister-in-law C] dated 19 October 2023 including an identification card (very poor image);
(e)Photograph of a [Employer 1] identification in the name of [Sister-in-law C]. This appears to be the same identification card displayed in the photograph of the statutory declaration from [Sister-in-law C];
(f)Photograph of a handwritten statutory declaration by [Sister D] dated 16 October 2023 including her [identification];
(g)An A4 page containing 19 separate photographs;
(h)A photograph (of very poor quality) of two separate identification cards belonging to the applicant;
(i)A photograph (of extremely poor quality) purportedly of the applicant’s 2005 school certificate for [School 1];
(j)A photograph (of extremely poor quality) purportedly of the applicant’s 2007 higher school certificate for [School 1];
(k)A photograph (of very poor quality) purportedly of a certificate relating to the applicant completing training at [College 1] in 2010; and
(l)A photograph (of extremely poor quality) purportedly of the applicant’s birth certificate.
On 30 October 2023, the applicant provided to the Tribunal additional material. Again, no explanation accompanied this material to explain what the material was or how they related to his claims:
(a)An undated screenshot of an internet search under the search terms of “png enga tribal fight”; and
(b)A photograph of a typed undated statement from [Mr E] from [Church 1].
On 8 November 2023, the applicant forwarded what appears to be a video which could not be viewed by the Tribunal. No explanation accompanied this video to explain what it was or how it related to the applicant’s claims.
On 20 November 2023, the applicant emailed to the Tribunal copies of the below documents. No explanation accompanied the email to explain what the documents were or how they related to the applicant’s claims:
(a)A single page letter of an offer for the applicant to work for [Employer 2];
(b)Change of contact details form confirming the applicant’s relocation to Tasmania; and
(c)Employment contact between the applicant and [Employer 2].
On 22 November 2023, the applicant emailed further documents (in PDF format) to the Tribunal. Again, there was no explanation as to how those documents related to his claims except that he was submitted the material as “supporting documents”. Those documents are:
(a)Screenshot of an internet search of “png enga tribal fight”. He said that this was a screenshot of a link to ABC News reports. The screenshot is the same document described above in paragraph 22(a) which he provided to the Tribunal on 30 October 2023;
(b)Statutory declaration of [Sister-in-law C]. He said that this was a statutory declaration from his younger sister. This is the same document described above in paragraph 21(f) which he provided to the Tribunal on 25 October 2023;
(c)Letter of Recommendation from [Officer A]. This is the same document described above in paragraph 21(b) which he provided to the Tribunal on 25 October 2023;
(d)[Employer 1] identification in the name of [Sister-in-law C] and a statutory declaration from [Sister-in-law C]. He said that these were from his [brother’s] wife. They are the same documents described above in paragraphs 21(d) and 21(e) which he provided to the Tribunal on 25 October 2023; and
(e)18 photographic images depicting burning buildings, armed men, firearms and what appeared to be a deceased person. The images have been cut and pasted into the documents and the images are ‘grainy’ in appearance are of poor quality. The applicant’s description for those images is that they are “Photo shots from war affected zones”, although he does not say where the zones were, when the photographs were taken, where he obtained them or how they relate to the claims he made in his application.
First review hearing
As already explained in these Reasons, the applicant accepted the Tribunal’s invitation to attend a hearing. When the hearing commenced, the Tribunal discussed with him the claims he made in his original application relating to the reasons why he could not return to PNG were because of economic reasons.
Also discussed with him were the contents of his email earlier referenced in these Reasons at paragraph 22(a) where he wrote:
Hi I'm [applicant’s name] from Papua New Guinea from the Highlands region in Enga Province. I arrived here in Australia [in] December,2022 on a temporary working [visa] as a seasonal worker under [employer name] for nine months working period.
In the middle of the year while working, I got news from home and on ABC News that war has started in my home Province of Enga involving more than ten tribes fighting against each other deserting villages, destroying properties worth millions and more deaths just, for political and territorial land disputes among tribes.
My village got completely wiped out and families got scattered all over the country.
I knew that if I return home I will surely die because young man like me are sent to the front to fight and they're even hunted and killed even when they're in any places around the country.
Regarding that, I got scared of losing my only life so I applied to immigration for protection Visa to remain back with the help of [Mr F] who applied for me on behalf on the 01/09/23 and was granted bridging visa on the 04/09/23. On the 05/10/23 I received a Notification of Visa refusal from immigration because of lack of supporting evidence which, I should have submitted earlier but did not have clear understanding about protection Visa as it was my first time. I was told to appeal to the AAT within 28 days period therefore I'm submitting my appealing letter for review together with supporting details.
Your consideration regarding my situation is very much highly appreciated.
When the hearing commenced, the applicant’s testimony was that the claims outlined in his application were not the claims he relied upon. He explained that with the help of a friend, [Ms G], he was put in touch with a person he knew as [Mr F], who he thought was a migration agent. He paid money to [Mr F], and sent to him his personal identification details and so forth to him so that [Mr F] could complete and lodge a protection visa application. The applicant went on to say that he told [Mr F] that his claims for protection were that he feared going back to PNG because of the tribal fighting that was taking place, yet it appears that [Mr F] went ahead and made up the economic claims.
He also told the Tribunal that he did not see the protection visa application before it was lodged with the Department, and it was only when he received the delegate’s decision record that he found out that the claims outlined in the application were economic claims, and not the tribal fighting as he told [Mr F].
When questioned further about that by the Tribunal, he conceded that soon after the application had been lodged he was advised by email that his application had been received. When asked if he had received a copy of the application, he indicated that he did, but relied upon his testimony that he was not fully aware of the actual claims made until he was notified that his application had been refused.
It was identified to the applicant that within his application it was outlined that he had lived his life in Port Moresby, and not in the Enga Province as he was claiming. He told the Tribunal that he was born in [Town 1], [in] Enga Province. He said that he had never lived in Port Moresby as claimed in his application, and he was living in Enga Province just prior to when he travelled to Australia.

When asked about his new claims and why he cannot return to PNG, the applicant told the Tribunal that because of the tribal fighting, it was very unsafe for him to return and he would be killed as it would be expected that he would have to take up arms and fight alongside others in his tribe. He also explained that his village is completely gone, it was destroyed during the tribal fighting and there were many members of his tribe who had been killed.
When asked if he had any photographs of his village being destroyed, he responded that he did not but he had found other photographs on the internet, although the Tribunal is not satisfied and it is indeterminate whether those photographs relate to the actual tribal fighting, of they belong to another time or period of previous fighting in PNG. He went on to say that he had a well-founded fear that if he returned that no matter where he lived in PNG, members of the warring tribes would find him and he would be at risk of being killed.
[Officer A’s] evidence
The applicant called [Officer A] as a witness. [Officer A] lives and works in Port Moresby and his evidence was heard by telephone. He is a serving member of the Royal PNG Constabulary with 12 years sworn service and he holds the rank [specified]. He is attached to the [named Division] at [Police Station 1] in Port Moresby. He told the Tribunal that he is the applicant’s [relative], and the applicant considers [Officer A] as his father. Given that close relationship, the Tribunal is satisfied that [Officer A] could not be considered as an independent witness.
[Officer A] had provided a typed document referred to as a letter of recommendation. Although the date of the document is almost completely obliterated underneath a stamp, the month of October is distinguishable, although the actual day cannot be determined. A copy of the letter was first provided to the Tribunal on 25 October 2023.
For the purpose of accuracy, the contents of that document have been reproduced as displayed below:
This is to recommend that the bearer of this letter [the applicant] hails from [Village 1] in [Town 1], Enga Province in Papua New Guinea. I am recommending him as a police officer and a neighbouring tribesman of [the applicant].
He has been sent to Australia as seasonal worker and he is currently residing there. Whilst he is in Tasmania. Australia working, a tribal fight erupted in the neighbouring tribes of [the applicant] and escalated to his tribe.
This tribal fight has caused a lot of lives being lost; properties worth millions of kinas damaged as they use high powered weapons to fight. Peace loving people have fled to seek refuge and so many villages are now used as war zones and [the applicant’s] village is one of them.
[Officer A] told the Tribunal that during the Tribal fighting in the Enga Province villages were burnt down, people were killed and other villagers had fled the area. He told the Tribunal that at the time of his evidence, the tribal fighting had calmed down and the tribes are no longer fighting, although he portrayed that the applicant was still in danger of being killed or harmed if he returned to PNG.
The Tribunal is satisfied that [Officer A] gave his evidence with an obvious intent to support the claims made by the applicant that he was at risk of harm because of the tribal violence in Enga Province. It is noted that [Officer A] stated in his letter that the applicant was living in Tasmania, and the Tribunal is aware that the applicant contacted the Tribunal on 16 November 2023 to advised that he was relocating from NSW to Tasmania.
As already identified, [Officer A’s] statement is dated sometime in October, and it was first provided to the Tribunal on 25 October 2023. The Tribunal therefore accepts that [Officer A’s] letter was formulated, signed and delivered to the applicant sometime in October 2023, but at least before 25 October 2023.
The significance of the date of [Officer A’s] letter applies to what level of credibility should be applied to his evidence having particular regard to his occupation and his relationship to the applicant. The Tribunal is satisfied, and therefore accepts that he has a close relationship with the applicant and that relationship may have influenced his recall of events, particularly when he said that the fighting had calmed down and the tribes were no longer fighting, yet he still considered that the applicant was at risk of harm because of tribal fighting in Enga Province.
Having particular regard to the country information later discovered by the Tribunal, although he said that the fighting had calmed down and the fighting was not taking place, as a police officer it can be assumed that he would have known that at the time of making his statement that peace agreements had been reached by the warring tribes and the fighting tribes had been ordered to stop fighting.
This is something which [Officer A] failed to disclose to the Tribunal and the Tribunal finds that because the applicant was related to him, it was out of loyalty to the applicant that he was less than frank with the true circumstances of the situation in Enga Province. Therefore, no weight is placed upon his evidence that the applicant was at risk of harm should he return to PNG.
[Ms G]
[Ms G] is a PNG National who is a permanent resident of Australia pursuant to her being granted a protection visa. The reasons for the granting of that visa to her are distinct from and different to the claims made by the applicant. She told the Tribunal that she is from the Western Province of PNG, which is the neighbouring province to where the applicant comes from.
She and the applicant met in NSW, which was before they both moved to Tasmania for work. She was aware that he wanted to apply for a protection visa, and she put him in contact with a Malaysian national she knows as [Mr H], who lives in NSW.
[Ms G] was not able to tell the Tribunal about the applicant’s claims, except that he had told her that back in June or July 2023 that he did not want to return to PNG because members of his family had been killed in the tribal violence and homes in his village had been destroyed.
[Brother B] – statutory declaration
[Brother B] is the applicant’s brother. He was not called to give evidence at the first hearing, the applicant sought to rely upon him as a witness for the second hearing. However, during the second hearing a number of unsuccessful attempts were made to telephone him and he did not appear.
Within his statutory declaration dated 20 October 2023, [Brother B] described himself as [an Occupation 2]. He went on to say that a tribal fight had escalated in “our village’ and people are killing each other with countless properties destroyed. He went on to state that it was not safe for the applicant or anyone else to live or travel to and from their village in Enga Province and it was very risky for the applicant.
Likewise to the evidence of [Officer A], the comments made by the applicant’s brother are not independent evidence. Although the Tribunal accepts that tribal fighting did take place, the overall comments made by [Brother B] about their village in Enga Province is vague and lacks specificity. It is notes that his statutory declaration is dated 20 October 2023, which is over a month after the warring tribes in the Enga Province settled their dispute with a peace agreement, and the Tribunal is satisfied that if [Brother B] is from Enga Province as he claims, then he would have known about those peace agreements at the time he made his statutory declaration. Therefore, no weight is place upon this evidence in the determination of this matter.
[Sister-in-law C] – statutory declaration
[Sister-in-law C] is married [Brother B]. She was not called to give evidence in either the first or the second hearing. Her statutory declaration is dated 19 October 2023 in which she stated that there was “a big tribal fight in our village and it is not safe for [the applicant] or anyone else” to return to the village.
She went on to say that it was safer for the applicant to remain in Australia because all tribal enemies are scattered throughout the country and his arrival back in PNG would put his life at risk. Noting that she claims that she is from Enga Province, and her statutory declaration is dated 19 October 2023, the Tribunal is satisfied that at the time that she made her statutory declaration the warring tribes had reached a peace agreement and the fighting had long ago stopped.
In the Tribunal’s view, the contents of the statutory declaration lack veracity and no weight is place upon this evidence in the determination of the applicant’s application.
[Sister D] – statutory declaration
[Sister D] is the applicant’s sister and she described that she was from [Town 1] in Enga Province. Her statutory declaration was made on 16 October 2023 and she claimed that there was a “current tribal fight in our area”, and it was not safe for the applicant to return to PNG because his life will be in danger.
Similar to the evidence of [Brother B] and [Sister-in-law C], her statutory declaration was signed well after the tribal fighting had stopped in Enga Province and the warring tribes had agreed to the terms of a peace agreement. Therefore, no weight is placed upon her comments that there was a current tribal fight happening in Enga Province.
Second review hearing
Following the conclusion of the first review hearing, the Tribunal became aware of publically available on-line news reports relating to the tribal fighting which took place in the Enga Province of PNG.
Those news reports revealed that the tribal fighting in Enga Province had been resolved and a peace settlement had been reached between the warring tribes. Those news report were from:
(a)PNG Haus Bung online news organisation, article titled “Warring Tribes In Enga Halt Fighting”, dated 6 September 2023;[23]
(b)PNG Post-Courier online news organisation, article titled “Fighting tribes agree to ceasefire”, dated 18 September 2023;[24] and
(c)The National online news organisation, article titled “Tribes agree to stop fighting, sign ceasefire in Hagen”, dated 24 November 2023.[25]
[23]Warring tribes in Enga halt fighting, PNG Haus Bung, Yasi E G, 6 September 2023, accessed 5 December 2023:
[24]Warring Tribes In Enga Halt Fighting, PNG Haus Bung, Yasi, E G, accessed 1 December 2023.
[25]Tribes agree to stop fighting, sign ceasefire in Hagen, The National, 24 November 2023, accessed 1 December 2023.
The country information revealed that the peace agreement had taken place prior to the hearing of the applicant’s review application. Out of fairness to the applicant, after the discovery of the publically available information, it was arranged for him to return to the Tribunal so that this information could be discussed with him, and the Tribunal dispatched to the applicant’s email an invitation to attend another hearing, scheduled for 21 December 2023.[26]
[26]Hearing invitation emailed to the applicant on 5 December 2023.
During the second part of the hearing process, it was confirmed with the applicant that he was from the village of [Village 2] which is situated in the Enga Province. The village is located about one hours’ drive from [Town 1] and about two hours’ drive from Mt Hagen. He nominated that he is from the [named] Tribe and [named] clan.
PNG features four distinct regions, being the Southern, New Guinea Islands, Highlands and Momase regions. With those regions there are 22 provinces, of which one is Enga Province. Enga Province is located in the north most region of the highlands of PNG, having been divided from the Western Highlands to become a separate province when the provinces were created at the time of independence in 1975. [Town 1 is in Enga Province] and the neighbouring province is Western Highlands Province, with Mount Hagen as its capital.
At the time of the second part of the hearing, the applicant still maintained that the tribal fighting in Enga Province is still happening. He told the Tribunal that it was still going on, and there is no one left in his tribe to stay back and fight. He said that if the enemy tribe meets his tribe, they (both tribes) will still fight. The enemy tribes are [named].
Because the applicant was appearing before the Tribunal,[27] discretion was exercised to give him clear particulars of that country information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. That country information was contained within those news articles mentioned above.
[27]Subject to the provisions of the Migration Act 1958 (Cth), s 425.
In giving him clear particulars of that information, the Tribunal, as far as was reasonably practicable, made sure he understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the delegate’s decision. The applicant was invited to comment on or respond to the information and he was also advised that he may seek additional time to do so, and if he did, then the Tribunal would adjourn the proceedings for a reasonable time to allow him that additional time. He declined the invitation and opportunity for that additional time.[28]
[28]Migration Act 1958 (Cth), s 424AA.
The country information revealed that on 6 September 2023, a news report was published by the on-line news organisation PNG Haus Bung which outlined that the Tribal fights in Enga Province has eased down after a peace agreement was forged between the rival tribes, the Sikin and Ambulin faction. This agreement was brought about by the Provincial Police Commander, Mr George Kakas. Although the agreement had been struck, there has been doubts between the rivals in upholding the peace agreement with minor heated arguments and fights occurring, but with the intervention of police there was an improvement from the previous encounters that resulted in the hospitalisation or deaths of citizens. It was further reported that the PNG police were on high alert to stop conflicts entirely with police road patrols and road checkpoints established in the fight zones to maximise peace between the tribes.
Contained within the Post-Courier online news article dated 18 September 2023 was information that the devastating tribal warfare that claimed more than 200 deaths and attracted international media attention in Wapenamanda district of Enga Province has come to an end. The report went on to say that the tribal fight between Sau Walep, Lungupin, Itokon Nenae and Yopo tribes with the Kandaolin, Mupapalu, Sikin, Wapukin and Paiinau tribes which includes 14 Wards in the Middle Lai constituency unanimously agreed to a ceasefire agreement. Hundreds of men, women and children turned up and accepted the ceasefire. On the same day, the negotiating team visited the other warring faction which include Sau Walep, Lungipin and Itokon Nenae clans at Aipas village along the Highlands Highway and also imposed the ceasefire. The report described that all the warring factions of the 14 wards, impacting more than 20,000 population agreed to lay down their arms and uphold the ceasefire agreement. The agreement would subsequently be followed by a restraining order served to both warring factions to stop the fight.[29] The Tribunal particularly notes that the news articles do not make any reference to the [named] Tribe of the [named] clan, which the applicant claimed were his tribe and clan.
[29]Fighting tribes agree to ceasefire, Papua New Guinea Post-Courier, Rai, F., accessed 1 December 2023.
The particulars relating to the information contained in the news article published by The National on 24 November 2023 were also discussed with the applicant. It appears that this article refers to fighting that took place between the Moke Nambka and Kopi Nokpa tribes. Reference is also made to the signing of a peace agreement between those tribes in Mount Hagen.
When the country information relating to the cessation of the tribal fighting was outlined to the applicant, his response was that he still feared returning to PNG because the fighting will still happening. The Tribunal finds that there is no evidence of any additional fighting in that area since the peace agreement was reached. The applicant told the Tribunal said that the PNG Government does not understand what is going on with the tribal fighting in Enga Province, and nor does he accept that the tribes have stopped fighting. This is notwithstanding that his last contact with family members in that area last took place before a time of when the peace agreements were reached between the warring tribes.
Attempts to call witnesses
As already outlined in these reasons, during the second part of the hearing process, the applicant asked that [Officer A] be against connected to the hearing as a witness. He also asked that his brother, [Brother B], be contacted. He said that both of those people were aware that they were to give evidence in the hearing, and he provided their telephone numbers.
Attempts were made to contact the witnesses on the telephone numbers provided. However, they were not able to be connected into the hearing.
DELAY
When carefully assessing the facts, features and circumstances of the applicant’s case, the Tribunal was informed by the applicant that after being granted a work visa, he travelled to Australia. The work visa allowed him to remain in Australia for nine months. It was not until he got within a few weeks of the expiry of the work visa that he lodged his application for a protection visa.
The applicant’s evidence is that he found out about the tribal fighting in Enga Province in June or July 2023. It is accepted by the Tribunal that the tribal warring cost the lives of many people, and houses and properties were destroyed along with a significant number of people being displaced by the violence.
Notwithstanding that the applicant’s application did not display claims relating to the tribal violence in Enga Province, but instead spoke of an economic situation in PNG, the Tribunal is satisfied that a significant period of time of approximately three months had passed between when he became aware of the tribal fighting to when he made his application.
When considering that significant delay, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
A delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety[30] and as the Tribunal particularly notes from the applicant’s testimony, the claims made in his application were not his true position, but rather something which the person called [Mr F] did without his knowledge.
[30] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
Notwithstanding those claims outlined in his application, the Tribunal is satisfied that regardless of what claims were made, there was still a significant delay between when he said he became aware that he had a well-founded fear of returning to PNG to when the protection visa application was lodged.

The Tribunal further notes that after receiving the delegate’s decision to refuse his application, the applicant made searches on the internet for evidence to support his fresh claims relating to the warring tribal conflict in Enga Province. The delegates decision to refuse his application was made on 5 October 2023, and it was not until 23 October 2023 that he lodged his review application with the Tribunal; and very first occasion he started providing the Tribunal with evidence about a tribal war in Enga Province was two days later, on 25 October 2023.
At all times during those three dates just identified, the tribal conflict had already been settled with the tribes agreeing to a peace settlement on or about 18 September 2023. There are no further reports of the conflict occurring after the peace agreements were reached.
The Tribunal has very carefully considered that significant period of delay as explained above, and after carefully assessing all of the circumstances surrounding that delay, along with the most recent country information, the Tribunal is satisfied that the delay correlates with the significant lack of genuineness of the applicant’s claims that he has a well-founded fear of persecution if he were to return to PNG because of a tribal conflict. Therefore, the Tribunal finds that the delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.
CONCLUSION AND REFUGEE FINDINGS
The definition of a refugee is provided within section 5H(1) of the Act where it is explained that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[31]
[31]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will 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 the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[32] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[33]
[32]Migration Act 1958 (Cth), s 5AAA.
[33]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Having given very careful consideration to the evidence provided in this application, along with the country information that relates to the settling of the tribal conflict within Enga Province by at least 18 September 2023, the Tribunal accepts and prefers to credibility attached to news reports contained within the country information over and above the evidence provided by the applicant.
Notwithstanding that, the Tribunal does accept that from time to time conflict does arise between tribes in PNG. There have been many examples of conflicts whereby members of rival tribes arm themselves with weapons and people on both sides of the tribal are harmed or kicked, with properties also being destroyed. However, the Tribunal finds that at the time of this matter, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, a real risk exists that he would suffer significant harm or there is a real chance that he would suffer serious harm.
Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, nor has he satisfied the criterion as provided in section 36(2)(a) of the Act, and Australia does not have protection obligations in relation to him.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[34] the Tribunal has considered the alternative criterion.[35] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk that he will suffer significant harm as it is defined in the Act.[36]
[34]Migration Act 1958 (Cth), s 36(2)(a).
[35]Migration Act 1958 (Cth), s 36(2)(aa).
[36]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to PNG. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[37]
[37]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to PNG now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or to cruel or inhuman treatment or punishment, nor will he be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to PNG, he will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
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 916

3 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Jurisdiction