2406296 (Refugee)

2406296 (Refugee) [2024] AATA 4429 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jennifer Nugent
CASE NUMBER:  2406296
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Don Smyth
DATE:1 October 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 01 October 2024 at 6:30pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – persons accused of sorcery – tribal violence – sorcery accusation related violence – kidnapping – physical assault – fear of killing – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

It has been claimed that each of the applicants is a citizen of Papua New Guinea (PNG). PNG passports have been provided with respect to each of the applicants. I accept that the applicants are all nationals of PNG.
The applicants applied for protection visas on 13 October 2023. On 13 March 2024, a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
It has been claimed that the first named applicant is the father of the other applicants. Birth certificates have been provided for each of the applicants. Having regard to the documentary evidence, I accept that the first named applicant is the father of the other applicants. For convenience, I will refer to the first named applicant as ‘the applicant’ and to the other four applicants as ‘the applicant children’.
The applicant appeared before the Tribunal to give evidence and present arguments. Having regard to the age of the applicant children, I accept that they were not in a position to give evidence themselves. In these circumstances, the applicant gave evidence on behalf of himself and each of the applicant children. He appeared before the Tribunal at an initial hearing on 10 July 2024 and then at resumed hearings on 15 August 2024 and 17 September 2024. I have considered carefully the applicant’s oral evidence across his three appearances before the Tribunal. Aspects of his oral evidence are discussed in my reasons, below. I took oral evidence from 2 additional witnesses, namely [Pastor A] and [Witness A], and have had regard to this evidence also. The Tribunal hearings were conducted with the assistance of an interpreter in the Tok Pisin and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearings.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
According to information provided in his protection visa application, the applicant was born in Port Moresby in [specified year]. He married [in] February 2012.
The application included the applicant’s four children, [names and dates of birth]. As noted above, I will refer to these applicants as ‘the applicant children’. The applicant identified his spouse / de facto partner as [Partner A], born in Lae in [year]. He gave a contact address for his wife in Port Moresby and indicated that he had contact with his wife. The applicant indicated that he had lived at addresses in Port Moresby (including an address in [Town 1]) [until] September 2023.
The applicant indicated that he had completed his schooling in Port Moresby between [specified years] before completing a [Qualification 1] between [specified years]. The applicant did not provide details of past employment in the protection visa application, although he did subsequently detail his employment in a statutory declaration (as summarised below). The application indicated that the [older] children had attended primary school until October 2023.
The applicant gave his ethnic group as Pacific Islander and his religion as Baptist.
The applicant indicated that he had received a visitor visa valid for 3 months in Australia. He indicated that he and the applicant children had arrived in Australia as visitors [in] September 2023.
The applicant set out written claims in his protection visa application and in a supplementary statement (headed ‘Background’). In summary, he referred to an accident on [a day in] June 2019 in which a truck driver, [Driver A], from [Village 1] in [District 1], Eastern Highlands was killed. He described [Driver A’s] status as [connected to] a chief in the district and indicated that his death had led to conflict between two tribes in the Eastern Highlands provinces. He described the consequences of the fighting. The applicant made claims to the effect that [Driver A’s] family did not accept the death and attributed the accident to sorcery. He referred to a female relative of [Driver A] performing a ritual, identifying five innocent men and naming one person as the sponsor who funded the others to perform the sorcery. The applicant stated that he was accused of giving funds to the four men to do the sorcery. The applicant described harm experienced in PNG. In summary, he stated that he was dragged, bashed and physically abused. He claimed to have witnessed the killing of 3 other people who were accused of involvement. The applicant described his village experiencing harm and his family feeling unsafe because they were the ones targeted. He referred to being targeted because it was claimed that he sponsored the killing of the chief’s [associate] and claimed that his wife and children were most at risk. The applicant described having tried to get help at the police station but said that they could not do much. He described going to the Family and Sexual Violent [sic] Unit to get support but said all they could do was record the issues and say to come back to the police if it happened to them.
With regard to relocation, the applicant stated that it was very difficult for them to move to another province because he was well known for his status in the communities. He stated that it was unsafe for his family and wife to move around in PNG due to ‘the payment killing’. The applicant expressed fear for the safety of himself and his family. He made claims to the effect that he had been on the run and that the opposing tribes found where they lived and burnt their houses down. He stated that relatives were injured in a fight in Port Moresby. The applicant claimed that he was the target as it was claimed that he was the sponsor of the murder. The tribe that [Driver A] was from still wanted to hunt him down and kill him. The applicant made submissions to the effect that he did not trust the authorities in PNG to protect him and his family, and that the police were powerless.
The applicant submitted to the Department a statutory declaration, dated 24 January 2024, in which he provided further detail with respect to his claims. In summary, this included the following information:
·     The applicant indicated that he was from [Town 2] in [District 1] in Eastern Highlands Province and that he was of Baptist faith.
·     The applicant provided details of the family background for himself and his children. This included information to the effect that his mother, [Mother A], was living in Port Moresby and that he had [specified] siblings, including a sister, [Sister A], who was living in Port Moresby. The applicant indicated that he married his wife, [Partner A], in a customary marriage in February 2012.
·     The applicant described the circumstances of his arrival in Australia [in] September 2023, indicating that his wife’s visa was cancelled when they came to Brisbane and that she was returned to Port Moresby.
·     The applicant gave information about his education and employment. He provided details of schooling between [specified years]. He referred to attending [College 1] in Lae [in specified year]. With regard to his employment, the applicant gave information in relation to having worked at [Employer 1] until 2023. He stated that he finished working the week before he came to Australia and resigned from the job.
·     The applicant described his life in Port Moresby, including the history of his relationship with his wife. He indicated that he and his wife started living together in 2012, and that they lived at an address in the [Settlement 1] in [Town 1]. He indicated that they moved to [Town 3] in 2017. Earlier in 2023, they moved back to the same house he had had in [Town 1] because the rent had increased in [Town 3] and they could not afford it.
·     The applicant indicated that he was from Eastern Highlands and his wife was from Lae ‘and a bit from [another town]’. He described visiting his village for holidays or special events or issues. He said he would sometimes take one or two of his children, or sometimes go alone. Sometimes his wife came. The applicant indicated that his father’s relatives still lived in [Town 2] and that was where he originated from. He said his father had lived in Port Moresby. During the year, but not regularly, they would go to the village. They would see their uncles and aunts in the village and stay with them.
·     The applicant described the accident leading to the sorcery accusations. In summary, he indicated that he had gone to his village in early June 2019 to see his grandfather who was sick. The applicant described the accident on [a day in] June 2019 in which [Driver A] died. He indicated that [Driver A] was from a neighbouring village, [Village 1], and described [Driver A’s] work with a [type] company. He described [Driver A’s] status and importance, and indicated that the family and community did not accept the death. He described the ritual undertaken in relation to [Driver A’s] death. He said that the lady called out five names. Two were from [Village 1] and three, including the applicant, were from [Town 2]. She said that the applicant sponsored the four men to perform sorcery on [Driver A] to kill him. The applicant indicated that the ritual or ‘house cry’ occurred at [Village 1] while the applicant was in his village. The applicant described [Village 1 people] coming and attacking his village, and being taken away into the jungle with the other two [Town 2] men.
·     The applicant indicated that he and the other two men from his village were taken to a remote area in the jungle and questioned. He was accused of giving the money to sponsor the sorcery. The applicant described being bashed up. He said they were forced to admit that they killed [Driver A] through sorcery and he was blamed as the main culprit. They were humiliated, tortured and bashed with sticks.
·     The applicant claimed that three of the other men said they were not involved and described witnessing them being killed. He indicated that he and the other accused man from his village, [Mr A], were left alone and he somehow managed to escape. He said he took off the rope (he indicated that the rope came loose) and he ran away. He said [Mr A] was unconscious at the time so he did not take [Mr A] with him.
·     The applicant described finding a garden house in the jungle, finding someone he knew from a different village and telling this person his story. The applicant said it was in the early morning, like 2 am. He described walking to the main road, getting on a public motor vehicle and going to [Town 4]. He indicated that the person helped him with some money and he went to Lae. His wife’s relatives were in Lae and got him a plane ticket the same day to go back to Port Moresby. The applicant referred to being less scared when he was in Port Moresby because he was in the city.
·     The applicant gave evidence to the effect that the [Village 1 people] had gone to look for him and that there had been tribal conflict. He claimed that [Mr A] was freed because he admitted that the applicant gave them money to sponsor the sorcery. The applicant described the treatment of [Mr A] and the circumstances in which he was released back to his family. He described [Mr A] being flown to Port Moresby for further medical and other support. The applicant said he found out about [Mr A] having been released and being in Port Moresby through his family so he went and visited him and [Mr A] told him what had happened.
·     The applicant claimed that the [Village 1 people] did not do much to him directly between 2019 and 2022 but said he thought they were in a planning stage for something big.
·     The applicant referred to incidents in 2022 and 2023, stating that he thought [Driver A’s] family had sent men to Port Moresby to hunt him down. The applicant referred firstly to an incident on [a day in] November 2022 in which people from [Village 1] came to [Settlement 1] in Port Moresby and destroyed houses and attacked people. He stated that he was lucky he had moved out of [Settlement 1] and was living at [Town 3]. He referred to relatives being injured due to injuries sustained in the tribal fight. The applicant described keeping a low profile after this incident. The applicant stated that he was scared they might kidnap his children. His wife also stayed home most of the time.
·     The applicant described an incident at around 6pm on [a day in] August 2023 when he and his wife were driving home, indicating that they were followed by a car containing men who looked suspicious. He also described an incident on [a date in] September 2023 when men came to his workplace looking for him and an incident the following day when men came to his office and asked to see him at reception. He indicated that the receptionist told him that the same men had come to see him and that he looked from his window and the men looked suspicious. He said he told the receptionist to tell them that he was not in the office. He called [Mr A] who came and confirmed that these two men were part of the group that had tortured him in the village. The applicant said that he then called the police and told them that someone was trying to kill him. The police came and took the two men to the police station for questioning. The applicant claimed that the police were bribed by [Driver A’s] family and the men were released from jail. The applicant described being traumatised when he found the men had been released and going to ‘the Family and Sexual Violent Unit’ to report what had happened to him and his family. He said they could not do much because they were under resourced.
·     The applicant said he had done the protection visa application himself and may have made mistakes when filling out some parts of the application.
·     The applicant expressed a fear of being harmed because [Driver A’s] family had accused him of being the main culprit and sponsor of the sorcery. He stated that [Village 1 people] would still track him and his family down and harm them.
·     The applicant stated that no one knew where his wife was in Port Moresby. They did not tell anyone because it was not safe for her. She was not living with family members and was in hiding at a friend’s house.
·     The statutory declaration also included submissions addressing state protection and relocation.
·     With regard to his psychological state, the applicant referred to being very traumatised. He referred to having recently received a message from his brother, [named], and uncle, [Uncle A], telling him not to go back to PNG because there had been another incident. He stated that the [Village 1] people had again gone to the [Settlement 1] asking for him and this was giving him more stress. He said that, with the assistance of [Church 1] and [Pastor A], he was now receiving spiritual counselling and was also physically a bit relaxed. He said he could see that he could live a safe life in Australia together with his family.
A significant volume of documentation was submitted to the Department in support of the application. This included the following:
·     A number of news reports, including an article of 21 December 2022 entitled ‘Help investigation’ (which referred to fighting in Kami village of Lufa District in the Eastern Highlands), an article from The National of 9 May 2012 entitled ‘Tribal fight claiming innocent victims’ (which also referred to a tribal fight in Lufa), an article entitled ‘Sorcery causing brutal killings’ and an article from The National of 10 February 2021 entitled ‘Addressing sorcery, violence’.
·     Copies of the applicants’ birth certificates.
·     Records of subclass 600 Visitor visas granted to the applicants in September 2023.
·     A copy of the applicant’s PNG Driver’s Licence.
·     Copies of the bio data pages from the passports of the applicant children.
·     Photographs of the various family members.
·     An undated letter of support from [Pastor B] and [Elder A] of [Church 2]. In the letter, [Pastor B] referred to being a senior pastor at [Church 2] based in [Town 1], Port Moresby. He indicated that he had known the applicant since his birth. He named the applicant’s father as [Father A] and his mother as [Mother A], both from [Town 2]. He stated that the applicant had been having counselling and prayer sessions with him due to ‘the recent continuous accusations and tribal fights against him and his family’.
·     What appears to be a social media post (from [Uncle A]) dated [in] November 2022. The document referred to a big fight between ‘[Town 4 people],of [District 1]’ on [the day in] November. It referred to three people having been slashed with knives and to their being ‘at [hospitals] now’. It appears to contain photographs of various injuries.
·     A document which is dated [a day in] September 2023 and purports to be signed by M. [Officer A], First Constable, [Police Station 1]. The document is headed ‘BRIEF INCIDENT REPORT: ONGOING THREATS TO FAMILY’. It refers to a complaint received at [Police Station 1] on [that day] September 2023. The report sets out a history under the heading ‘Brief Explanation of the Incident’. It refers to incidents reported on [dates in] November 2022, [August] 2023, [and dates in] September [2023], and provides ‘Occurrence Book’ numbers for each incident. The report refers to the applicant and his family fearing for their lives, and to his seeking assistance to leave the city.
·     A medical report from [Town 3] Hospital dated [in] July 2019. The report refers to the applicant having been treated at the hospital on [a day in] June 2019 after he had been physically assaulted by tribesmen at [District 1], [Town 4] on [an earlier day in] June 2019 at around 2.30pm. The report refers to the results of an examination. It refers to the applicant having been treated conventionally and to the assailants having used blunt force and objects as weapons to cause multiple bodily injuries. The document is headed ‘[Town 3] Hospital’. It is headed ‘SUBJECT: MEDIICAL REPORT FOR [the applicant]’.
·     A letter of support, dated 11 January 2024, from [Pastor A] of [Church 1 in Suburb 1]. [Pastor A] stated that he had known the applicant since October 2023, and referred to support provided to the applicant and his family.
Departmental Interview
The applicant attended an interview with the Department of Home Affairs (the Department) on 11 January 2024. The applicant’s support person, [Pastor A], was also present at the interview. The applicant indicated that he did not need an interpreter for the interview, and that he could understand and speak English. He indicated that he wanted to continue the interview in English and the interview was in fact conducted in English.

I have listened to a recording of the interview and have had regard to all of the applicant’s evidence at interview, although it is not necessary to set this out in full. The applicant gave evidence about his background in PNG in a manner that was generally consistent with information provided in his earlier written evidence. I consider that the applicant gave evidence about his claims in some detail. His claims and evidence at the interview were broadly consistent with the claims made in the detailed statutory declaration of 24 January 2024. For instance, he described the circumstances around the death of [Driver A] and his being one of five people accused of sorcery. He described being attacked along with the other people accused and escaping to Port Moresby. He gave evidence to the effect that he got medical treatment in Port Moresby but did not get professional medical treatment prior to this (for instance, at the hospital in Lae) because he was concerned for his safety. He indicated that he did not report to police, for instance in [Town 4], and said that he just wanted to run away. He said that when he came to Port Moresby he felt okay. He described the incidents on [the dates in] November 2022, in August 2023, and on [dates in] September 2023. He referred to complaining to the police in Port Moresby, to two men being arrested and to the men having been released. He referred to his wife being in hiding.
On 13 March 2024, a delegate of the Minister made a decision to refuse to grant the applicants protection visas.
Review Application
Prior to the initial hearing, the applicant’s representative made written submissions, dated 3 July 2024. I have had regard to these submissions in full. The submissions included the following:
·     The submissions outlined background information in relation to the applicant and his family. They addressed findings that had been made by the delegate, as well as the applicants’ identity.
·     The submissions addressed credibility. In summary, submissions were made to the effect that the applicant had presented largely consistent claims of his experiences in PNG and his fears on return. It was submitted that credibility concerns raised by the delegate might be a result of the general state of mental health of the applicant. Reference was made to the applicant having suffered from physical and psychological torture, and to his mental health having suffered. It was also noted that the applicant had explained that he found the protection visa interview to be difficult as there was no available interpreter and he felt rushed to tell his story. It was noted that the applicant had been referred to [Agency 1] on 14 June 2024 with respect to trauma-related depression and anxiety and that he was on [Agency 1’s] waitlist. Reference was made to scientific studies indicating a link between psychological trauma and stress with memory.
·     The submission addressed vulnerability. In this regard, reference was to the Department’s Protection Visa Processing Guidelines and the Administrative Appeals Tribunal’s Guidelines on Vulnerable Persons.
·     The submission addressed the applicants’ protection claims, setting out the grounds on which they were based. The submissions referred to a number of reports with respect to sorcery related allegations in PNG. It was submitted that the country information demonstrated that sorcery-related violence occurred throughout PNG such that the applicant would be unable to safely relocate. Submissions were made to the effect that the applicant feared serious and/or significant harm on the basis of membership of the particular social group of ‘persons accused of sorcery’ or ‘men accused of sorcery’.
·     The submission addressed state protection. It was submitted that the applicant was unable to avail himself of the protection of PNG as there was an absence of effective protection measures available.
·     Submissions were also made with respect to the complementary protection criterion.
·     The submission addressed concerns raised by the delegate. With respect to concerns regarding the applicant’s presentation at interview, submissions were made to the effect that the applicant had elected not to have a Tok Pisin interpreter present at the interview, that he had failed to appreciate at the time how a lack of interpreter would affect his ability to provide detailed evidence, and that he felt that he was rushed to provide answers during the interview and as a result had to omit details from his account of the incident. It was noted that the applicant had been required to provide an account of the incident multiple times to multiple services. It was submitted that the applicant’s demeanour at the interview was consistent with someone who was recounting a traumatic event. A combination of a lack of interpreter, the rushed nature of the interview, and psychological symptoms associated with recollection of a traumatic event impacted the applicant’s demeanour during the interview.
·     The submission addressed concerns regarding the applicant’s relational connections and concerns raised by the delegate with respect to the applicant struggling to recall the names of his injured ‘uncles’. Submissions were made to the effect that there had been a cultural misunderstanding at the interview and that the word ‘relative’ was used in PNG ‘to refer to people that live in a person’s community or surrounding villages, even where there is no biological connection or their names are not known’.
·     The submissions also addressed matters such as the applicant’s home region, the timing of the applicant’s attendance at hospital for medical treatment, the applicant’s spouse’s residence, the 2019 medical report and the police report. With regard to the documentation, submissions were made to the effect that literacy levels were generally low across all sectors of PNG society and that basic English skills as well as digital literacy skills were lacking in the workforce.
·     The submission also addressed the circumstances of the applicant children. It was submitted, firstly, that they were members of the same family unit as the applicant. It was submitted also that the applicant had indicated that he believed his children would be unsafe as the [Village 1 people] were likely to attempt to kidnap them and harm them to get to him. It was submitted that the secondary applicants should also be recognised as meeting the definition of refugee in their own right.
The Tribunal was provided with a further statutory declaration from the applicant, dated 2 July 2024. This included the following information:
·     The applicant addressed his home region, indicating that his parents were originally from Eastern Highlands and, although his parents had migrated to Port Moresby, he identified culturally with Eastern Highlands. He referred to travelling back to visit his father’s relatives in [Town 2].
·     The statutory declaration provided further detail regarding the abduction. The applicant described the circumstances in which he was taken. He described being beaten and dragged out of the village with the other accused men from his village. He described his treatment by his kidnappers. He described his escape late at night in the darkness, as well as his travel to [Town 4] and Lae. He stated that he had done his best to explain all this in the protection visa interview but the lack of an interpreter had made it difficult to explain all the details.
·     The applicant stated that the supporting evidence was genuine.
·     The applicant described his protection visa interview, indicating that he did not have an interpreter there as he thought he felt comfortable enough in English. However, he said he was not fully fluent in English and needed more time to describe his story. He said he felt rushed telling his story. With regard to not attending the police earlier to report these crimes, the applicant referred to police corruption in PNG. He referred to the police in PNG and to their taking bribes and working in a Wantok system. He said he did not attend the police station in [Town 4] because it was the chief’s [associate] that the incident was related to and they were connected to him. It would have put him at greater risk if he had gone to the police station.
·     With regard to his injuries, the applicant submitted that it was unsafe for him to go to hospital and that he did not receive painkillers until he reached his wife’s family in Lae. The applicant referred to the doctor being very busy and to a lack of computers to record data, saying that records were made manually and there were delays. He said that was why the doctor could not give him a medical report immediately and that a clerk said to come back in two weeks to get the doctor’s report.
·     With regard to suspicious men attending his workplace, the applicant said he did report to police. He said he called [Mr A] to see if he recognised the men.
·     The applicant also outlined fears for the safety of his wife and children. With regard to his wife, the applicant said she had been hiding at a friend’s house in Port Moresby and was now staying [with an agency]. He said his wife, his children and himself were all at serious risk and their lives were in danger.
·     The applicant described threats against his mother and [sister]. He indicated that his mother and sister had told him the men were still looking for them and that his sister had sent a police report based on the reports she had made to the police. He referred to having been more focused on his immediate family and the risk to his life and those of his children and wife. He stated that his sister lived separately and had reported to a different police station.
·     The applicant referred to his mental and physical state, describing being very traumatised and afraid.
The applicant submitted the following additional information:
·     A further statement from [Pastor B] with a date stamp attached. [Pastor B] stated that the applicant’s father was [Father A] from [Town 2] and his mother was [Mother A], also from [Town 2]. He referred to the applicant having had counselling and prayer sessions with him due to recent accusations and tribal fights against him and his family.
·     A letter of 31 May 2024 from the applicant’s wife, [Partner A]. The statement also contains a signature and stamp which purport to be from an officer of the ‘[Police Station 2]’. In her statement, the applicant’s wife outlined the family composition, and referred to the situation as getting worse. She stated that they were still searching for her, her husband and her children. She described one of her ‘uncles in law’ having been kidnapped and murdered. She referred to being in hiding. She referred to the applicant’s mother and [Sister A], having been threatened. She stated that there was no safe place there for her husband and children. She said that she had been in hiding since her departure from Brisbane.
·     A letter of [June] 2024 from [Witness A] [from Christian Agency 1] in Port Moresby. [Witness A] confirmed that the applicant’s wife had been ‘in the sorcery accusation related [program]’ for almost five months since being separated from her husband and children. She referred to being [in other formal positions].
·     A document from [Officer A] at [Town 1] Police Station. This referred to an incident report in relation to a complaint received on [a day in] April 2024 around 3pm at [Town 1] Police Station. It included a ‘brief explanation of the incident’. It referred to ongoing threats to [Sister A] and [Mother A] and their family due to a false accusation against the applicant. It referred to an incident in [Settlement 1] in which three men from [Village 1] threatened [Mother A] at 11pm. It referred to an incident the following day in which two men from the same village threatened [Sister A] when she was trying to visit her mother, [Mother A]. The report stated that, after the applicant went into hiding, the matter had not been resolved. It referred also to [Sister A] having been attacked and threatened in early 2023. The report referred to ‘[Sister A]’ and her family having received more threats and having run away from their home in [Settlement 1]. The document made reference to three incident reports, on [dates in] February 2023, [March] 2024 and [in] April 2024.
Following the initial hearing, further documentation was submitted on behalf of the applicant. This included the following:
·     A statement from [Mother A] of Port Moresby dated 30 July 2024. She stated that she had called her son, the applicant, on 7 June 2024 with the assistance of the applicant’s cousin, [named]. She stated that she had left a message for the applicant to warn him of the situation in Port Moresby. She referred to a transcription of the message and confirmed the contents of the transcription to be correct.
·     A copy of the transcription referred to in [Mother A’s] statement. This was prepared by a paralegal at the Refugee and Immigration Legal Service who stated that she was fluent in Tok Pisin and English.
·     A statement of 17 July 2024 from [Sister A] together with a photograph relating to the ‘[Town 3 Hospital] ’.
Prior to the final hearing, the applicant’s representative made a further written submission dated 12 September 2024. I have had regard to this submission in its entirety. The submission addressed a number of matters, including issues raised by the Tribunal at the hearing on 15 August 2024.
At the final hearing, the applicant indicated that he had a document from the [specified police] Unit. Noting that this was not in the material before me, I gave the applicant additional time after the hearing to submit this document. He subsequently provided a document issued by [Officer C] of the [Police Station 2] [in] October 2023. The document referred to the applicant having made a formal complaint with respect to false accusations of sorcery. The applicant’s representative also provided a further written submission dated 24 September 2024.
Tribunal Hearings
As noted above, the applicant appeared before the Tribunal at an initial hearing on 10 July 2024 and then at resumed hearings on 15 August 2024 and 17 September 2024. I have considered carefully the applicant’s oral evidence across his three appearances before the Tribunal.
The applicant also nominated two witnesses, namely [Pastor A] and [Witness A]. I took evidence from [Pastor A] at the hearing of 15 August 2024 and from [Witness A] at the hearing on 17 September 2024. I have considered carefully the evidence of each of these two witnesses, as summarised below.
In his evidence, [Pastor A] said he had been working with the applicant and the family for close to a year in the context of a referral by the street level service. He referred to working with them closely and supporting the family in mostly practical ways. He stated that their understanding had been that they had come from PNG for significant safety reasons and were separated from the applicant’s wife and the children’s mother. They had been journeying with the family to help them manage and cope day to day. [Pastor A] indicated that he was the [specified role] at [Church 1 in Suburb 2]. He indicated that the applicant came through their street level stream and connected with them initially at [Suburb 2]. I noted that [Pastor A] had said his understanding was that the applicant had come from PNG for safety reasons and asked whether there was anything else he wanted to say about that. [Pastor A] said that, from what the applicant had told him, it was pretty dire and he did not think that had really changed much in the time he had been with them. Some of the concerns about family members back there were pretty valid. Based on what they had been told and what they knew, it seemed pretty significant. Returning from the family’s point of view was not a realistic option. [Pastor A] stated that, as an NGO, they would be advocating for them in their vulnerable state to be supported in whatever way they could. He stated that they had people in their congregation who had served in PNG and that they had an appreciation for what unfolded in the context of culture there. Much of what the applicant said occurred in different aspects of their life and culture. He stated that the threat and the concern seemed pretty real from what they knew.
I initially attempted to call [Witness A] at the hearing in August 2024 but was not able to make contact with her on that occasion. I sought to call her again at the hearing of 17 September 2024. After a number of attempts, contact was ultimately made with [Witness A] via the number in the letterhead of her letter of [June] 2024. I note that [Witness A] confirmed her full name and date of birth, something that is discussed further in the consideration, below. [Witness A] spoke with the Tribunal at some length. Her evidence is summarised below.
In summary, [Witness A] began by giving evidence about the [Christian Agency 1] and her role in it. She indicated that she was the [leader] of the Ministry which [had programs] for people accused of sorcery. She stated that it started in 2010. She referred also to human rights and to being a [official 1]. She referred to working as a [local official 1] with [Agency 2] for 13 years and indicated that she was [an official 1] in the [Village 2] court. When asked what she did in that role, [Witness A] stated that she attended [agency] to hear the problems from the community. She referred to trying to help resolve the problems. When asked about why she had started the [program] in 2010, she said she started in 2010 because there were a lot of men and women who got accused of sorcery. She said she listened to their worries. When asked what the [program] did for these people, she said she looked after them for their own safety. She tried to bring the perpetrators to court. She referred to having a partnership with city hall. She said they purchased a ticket to relocate them elsewhere. She said they also sent them back to their own provinces if there was a risk.
When asked how she knew the applicant, [Witness A] referred to his wife, [Partner A]. She referred to [Partner A] having been sent back to PNG by Australia. She said that the police lady took her to the [agency]. She gave evidence to the effect that she was looking after [Partner A] because her life was at risk. She appeared to display some uncertainty as to precisely when it was that [Partner A] had come to stay to the [agency], indicating that she did not have her diary with her. She confirmed that she had written a letter in June. When asked what the problem was for [Partner A] and why she needed to come to the [agency], [Witness A] referred to a sorcery accusation. She gave evidence that [Partner A] had gone to the police and the police had brought [Partner A] to her. Her evidence was to the effect that the police did not tell her why [Partner A] was accused of sorcery. The wife told her that she needed protection so she stayed there. [Witness A] referred to her facing more violence and accusations regarding the sorcery. She referred to people trying to attack the applicant’s wife because of sorcery. She said the police brought her to the [agency]. She gave evidence that she did not know the details of the accusation. The applicant’s wife told her that they were getting angry and trying to harm her. Because of her trying to run away from the accusation of sorcery, they brought her to the [agency]. She stated that with sorcery matters they would continue to harm them or keep fighting. It passed from generation to generation.
When asked about whether the [agency] would be able to protect the applicant and his family if they were to return to PNG, [Witness A] replied ‘not safe’. She referred to not having enough resources, to stay there being time limited and to having to send people back to their villages. When asked how many people she was currently supporting, she referred to having helped about 1000 people since she started. She referred to collecting national data. She said at the moment she had about 15 people there. When asked how long the people stayed [with the agency] before she had to send them back to their villages, she gave evidence to the effect that it depended on their case. [Witness A] gave evidence to the effect that sorcery allegations were passed down from generation to generation. She said when the father and mother were accused the children were discriminated against because the parents were accused. They were not safe. [Witness A] referred to struggling for the last 24 years.

The applicant’s representative made oral submissions at the hearing. I have considered those submissions.
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). 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Factual Findings
I have carefully considered all of the available evidence in this matter. I am conscious that the applicant has given an account of his claims across multiple written statements, as well as a Departmental interview and three appearances before the Tribunal. There is now also a significant volume of documentary evidence and submissions. I have also taken oral evidence from 2 witnesses. My factual findings are based on a careful consideration and weighing of this evidence in its entirety. There are aspects of the evidence that have caused me some concern with respect to the credibility of elements of the applicant’s claims. However, for reasons outlined below and having regard to the entirety of the evidence, I consider that it is appropriate in this case to give the applicant the benefit of the doubt notwithstanding that there are some matters that have caused me concern.
In making my findings, I am conscious also that the applicant claims to be a survivor of torture and trauma. While I am willing to accept that he is on a waiting list to receive services from [Agency 1], there is nothing in the evidence before me to indicate that he was not fit to give evidence to the Tribunal. I have had regard to the Migration and Refugee Division Guidelines on Vulnerable Persons and the psychological effects of traumatic experiences, as referred to for instance at paragraphs 92 and 93 of those Guidelines.
The broad nature of the applicant’s claims has remained consistent over time notwithstanding that there have been inconsistencies in some aspects of the evidence as discussed below.
The applicant gave detailed evidence about his claims at the hearing. Again the broad scope of his claims and evidence, and the basis for his claimed fear, was consistent with his earlier written and oral evidence. He provided a considerable level of detail in relation to these claims across the course of 3 appearances before the Tribunal.
In summary, the applicant gave evidence that his parents were from the Eastern Highlands but moved to Port Moresby and he was born in Port Moresby. He confirmed that his parents were from [Town 2] and that he still had relatives there whom he visited occasionally. When asked how long it took to get from Port Moresby to [Town 2], he was able to provide a convincing account of the journey. At the hearing, the applicant also confirmed details of his education and employment in a manner consistent with information he had given in his statutory declaration of January 2024. I accept his evidence in this regard. The applicant gave evidence in relation to his wife, [Partner A], indicating that they had been living together since 2012. He described living in [Town 1] and then at an address in [Town 3] until 2022, before returning to [Town 1]. This is consistent with evidence in his statutory declaration of January 2024 and I accept his evidence in this regard. The applicant gave evidence about his family, indicating that he had [specified siblings]. This is consistent with evidence he had given to the Department and I accept that he has [number] siblings, including a sister, [Sister A], who previously lived in [Town 1]. The applicant indicated at the initial hearing that his wife was living [with an agency] in [Village 2]. This is something I will consider further below.
When asked at hearing about his reason for not wanting to go back to PNG, the applicant referred to the incident in June 2019 in which [Driver A] was killed in a car crash. He gave evidence in some detail about matters such as the circumstances of the accident and [Driver A’s] status in the neighbouring village, [Village 1]. His evidence in this regard was consistent with evidence he had given to the Department. He also gave evidence in some detail about the house cry ritual in which a woman identified 5 people, including the applicant, as being responsible for [Driver A’s] death. His evidence in this regard was largely consistent with evidence he had provided at the Departmental interview and his detailed statutory declaration of January 2024. He gave evidence to the effect that [some] of those named were from [Town 2] while [the others] were from [Village 1]. He named one of the people from his village as [Mr A]. The applicant gave evidence to the effect that he knew [Driver A], whom he described as the chief’s [associate], and that [Driver A] knew him. With regard to his own profile, he said that he used to work and was a bit well known. However, he indicated that he was born in the city so he just knew some of the people in the area.
In his evidence at the hearing, the applicant described conflict between [Town 2] and [Village 1] people. He described in some detail the harm directed at him and others accused of involvement in the sorcery or killing, as well as his escape. Again, his evidence was in line with evidence he had given to the Department. The applicant gave evidence in some detail about how he then travelled to Port Moresby. In summary, he described finding a garden house, meeting a person there named [Mr B] and relating his story to this person. He described going on a bush road to the place where they could go to [Town 4]. He said that from there the person helped him and gave him the bus fare and he came down to Lae. He described getting the plane from Lae to Port Moresby, referring to assistance provided to him by his wife’s family. He indicated that [Mr B] did not travel with him all the way to [Town 4] but gave him the bus fare. As discussed with the applicant at the hearing, in his Statutory Declaration of January 2024, the applicant referred to going to the garden house and meeting someone he knew from a different village. He said they walked all the way to the main road and got on a public motor vehicle and went to [Town 4]. This person then helped him with some money and he went to Lae. This might appear to suggest that the person went with him to [Town 4] and then helped the applicant with some money. When this was raised with him at the hearing, the applicant said that they went to the main road and that he left the applicant there and gave him the bus fare.
I have considered carefully the applicant’s evidence about this. While the evidence in the statutory declaration might imply that the person went all the way to [Town 4] with the applicant, it is not entirely clear in this regard. Any inconsistency is in my view very minor in the context of the broader description of his journey and I have not drawn any adverse inference in this regard. I consider that he has given a generally consistent description, across a number of iterations, of his journey to Port Moresby.
At hearing, the applicant again gave evidence to the effect that he did not get medical assistance in [Town 4] or Lae because he was afraid. In his oral evidence, the applicant also described what happened to [Mr A], giving evidence to the effect that people in the village negotiated his release and he later went to Port Moresby. The applicant gave evidence about receiving medical treatment in Port Moresby and obtaining a medical report. I discussed the medical report with the applicant at the hearing. He gave evidence to the effect that, although he was working in Port Moresby, he took precautions such as cancelling work trips. He also described taking precautions with respect to his children. He indicated that nothing happened from 2019 to 2022. He went on to describe the claimed attack in [Settlement 1] in [Town 1] in November 2022, indicating that he was in [Town 3] at the time of the attack. He made claims to the effect that it was people from [Village 1] who attacked. He claimed to have been afraid after this incident and indicated that he thought he had reported this incident to the police. When asked about whether he had had any problems after that, he gave evidence about 2 occasions in September 2023 when people came to where he worked and referred also to being followed by a car. He described reporting to the police when the people came to his work. He also referred to contacting [Mr A] to identify the people. He gave evidence to the effect that the people who came to his work would sit and wait outside, and that he contacted [Mr A], who came and saw them.
I also discussed with the applicant the police report. In this regard, he gave evidence to the effect that he had reported the incidents in November 2022, August 2023, and on [dates in] September 2023. With regard to the complaint on [one day in] September 2023, he gave evidence to the effect that the police caught 2 men but subsequently let them go without charging them. He said when he went to the police station to check the men were not there. He gave evidence to the effect that he told the police that the men were hired to kill him and that the police said to tell them if anything happened. I also discussed with the applicant the position for family members since his departure. He gave evidence to the effect that his sister was no longer staying at the family home and that only his mother was there. He referred to his mother having been threatened and his sister being in hiding. He gave evidence to the effect that his wife had been at the [agency] probably from March 2024.
A number of considerations arise in assessing the applicant’s evidence and its credibility. While aspects of the claims might appear potentially farfetched at first blush, the claims must be considered in the context of the broader country information. That information does point to sorcery-related accusations being a problem in PNG and to violence associated with these accusations. There are some aspects of the applicant’s claims, such as inconsistencies in the evidence, that give rise to some doubt with respect to credibility, as discussed below. However, those matters must be considered in the context of quite detailed evidence given over multiple iterations in writing and orally. I must also consider all of the documentary and witness evidence. As discussed further below, I consider the oral evidence of [Witness A] in particular to be of some significance. I have carefully considered and weighed all of the evidence in its entirety.
With respect to the independent information, I note firstly that DFAT has reported that there is a strong belief throughout PNG in the power of the supernatural, in particular the ability of ‘witches’ or ‘sorcerers’ to use magic. According to DFAT, this belief is prevalent in both rural and urban areas, and those accused of sorcery are often subject to harassment and violence, known as Sorcery Accusation Related Violence (SARV). DFAT refers to sources estimating that six people are killed and a further 23 suffer serious harm, including permanent injury, as a result of SARV each month. DFAT reports that whole families of SARV victims need to move out of their communities, potentially facing difficult long-term displacement. DFAT has reported that SARV has become more prevalent and more violent in recent years. The DFAT information indicates that accusations may involve finding a scapegoat for misfortune, such as the death of a relative of the accuser. According to DFAT, predictors of violence identified by researchers include whether or not the accusation involved an allegation that the accused had caused death. DFAT assesses that those accused of sorcery in PNG face a high risk of societal discrimination and violence. This discrimination may include being illegally detained, beaten or tortured, having their possessions stolen, being forced to leave their communities, or being killed.[1]
[1] DFAT, Country Information Report Papua New Guinea (6 September 2022) at pp.18-19
DFAT indicates that the vast majority of victims do not lodge complaints, stating:
In the ANU study, only a fifth of victims lodged complaints in relation to SARV, and, at the time of the study’s publication (2021), charges had been laid in only four cases from more than 1,000 incidents. Across the country, there are generally fewer than 10 offenders convicted each year for SARV, despite the high frequency of cases and the often very public nature of their violence. Police responses to SARV are limited by capacity limitations of the RPNGC... However, police officers may also believe the sorcery accusations or otherwise be sympathetic to the sorcery accuser. On occasion, police may face significant community opposition with regard to a SARV response and may have to contend with a large number of potential defendants (entire communities may participate in SARV violence).[2]
[2] Ibid. at p.18
A recent ABC report provided the following information on sorcery in PNG:
In PNG, some communities believe humans can be possessed by a spirit, transforming them into sangumas that feed off the hearts of others, academics say.
Accusations of sorcery usually follow a sudden or unexplained death, with a grieving family member or relative looking for someone to blame, particularly if their loved one died from an illness or disease that hasn't been understood by the community.
Those accused of being a sanguma are sometimes brutally murdered, tortured, burned or suffer other horrific consequences…
Peace-builder James Komengi, who works extensively in preventing SARV, said the key issue is a lack of education in areas far from government services.
"People are blaming [sorcery] when someone dies from malaria, when someone is washed away in the river, when a landslide causes a house to collapse," he said.
"Someone is blamed and murdered."
The scale of SARV in PNG is difficult to quantify, with little reliable data available on the number of attacks or killings of those accused of practising sorcery.
In a submission to a PNG special parliamentary committee, leading Australian National University researcher Miranda Forsyth and others estimated 3,000 people were killed through SARV in the country from 2000 to 2020.
However, they acknowledged this figure was not conclusive.[3]
[3] T. Swanston & T. Gunga , ABC News, ‘ Sorcery accusations in PNG can quickly spiral into a life-threatening attack, but this safe house offers victims a lifeline’ (13 April 2024), available at >
A discussion paper from the ANU on sorcery and witchcraft in Melanesia similarly observes that, in some places, deaths or serious illness believed to be due to sorcery or witchcraft elicit a violent response. This is ‘especially the case in parts of Papua New Guinea, where there have been hundreds of killings, including some very public attacks in urban centres’. The authors of the paper state, ‘From a Western, rationalist perspective, sorcery and witchcraft beliefs seem fanciful and not to be taken seriously. However, such beliefs lead people to act in ways that have real and material consequences for other human beings — sometimes with dreadful consequences.’[4]
[4] R. Eves & M. Forsyth, Developing Insecurity: Sorcery, Witchcraft and Melanesian Economic Development, SSGM Discussion Paper 2015/7 at pp.2 & 9
I note that the level of violence described by the applicant in his claims might appear somewhat extreme in nature. However, the independent information indicates that accusations of sorcery-related violence, particularly those related to a person’s death, may elicit a very violent response. It indicates also that police may not be responsive to complaints of SARV and that the overwhelming majority of victims of SARV do not lodge a complaint. In these circumstances, it is by no means implausible in the context of PNG that a person being targeted for SARV might choose not to make a complaint to the police but rather to flee to a place away from their immediate accusers. In these circumstances, I consider that the absence of any immediate report to the police, in [Town 4], Lae or on arrival in Port Moresby, ultimately does not weigh against the credibility of his claims. Nor would I attach any significant weight to an inability to explain precisely how the applicant was able to free himself initially. The events he described were traumatic in nature and he has provided a generally consistent account of his movements following his claimed escape. I consider it plausible also that a person targeted for violence related to an accusation of sorcery might choose to flee to a place distant from their accusers without getting medical treatment. That the applicant was able to travel to Port Moresby without receiving professional medical treatment might cast some doubt on the severity of the claimed harm he had experienced and suggest some possible embellishment in this regard. I note also that I do have some concern about the medical certificate from the [Town 3] Hospital. Notwithstanding the submissions that have been made with respect to this document, it does appear surprising that an official document from a PNG hospital would be headed ‘[full health service name including Town 3 Hospital, with typing error] ’. I would not be inclined to attach any significant weight to this document in itself.

As discussed with the applicant, there are a number of aspects of the evidence that caused me some concern. In this regard, I note firstly that the initial evidence in the protection visa application referred to five men from [Town 2] being named as having plotted the killing of [Driver A]. In his subsequent statutory declaration of January 2024 and his oral evidence to the Department and the Tribunal, the applicant has claimed that those accused included two men from [Village 1] in addition to three from [Town 2]. This did cause me some concern. However, the application contained limited detail in relation to the accused men. From the time of making the more detailed statutory declaration, the applicant has provided a consistent account in this regard. He has otherwise provided a detailed and convincing explanation of the circumstances in which he came to be accused, including in relation to matters such as [Driver A’s] death, [Driver A's] status in the community and the circumstances surrounding the house cry ritual. The initial evidence in the protection visa application with regard to the accused men did cause me some concern but is by no means decisive in itself.
I note also that there were some inconsistencies in the applicant’s evidence. For instance, in his evidence at hearing the applicant indicated at one point that he had made a complaint to the police in 2019, although this was at odds with evidence he had given previously and he ultimately indicated that he had not made such a complaint. At hearing he also initially appeared to be unable to recall that he had visited [Mr A] in Port Moresby as indicated in his earlier statutory declarations, although ultimately he confirmed that he had. I note also that the applicant has now submitted evidence in relation to threats to family members such as his sister, although this was not something he had specifically raised with the Department. In relation to this point, I am willing to give the applicant the benefit of the doubt and accept that he had been focused on harm to his immediate family. I note that he has consistently pointed to a threat to his wife, claiming that she has been in hiding. The other inconsistencies referred to above have caused me some concern. In assessing the applicant’s evidence and the credibility of that evidence, I note that the Tribunal’s Guidelines on the Assessment of Credibility observe that, when forming a view on the credibility of claims, the Tribunal should consider the overall consistency and coherence of an applicant’s account, and also that traumatic experiences may impact upon matters such as the consistency of statements since arrival in Australia.[5] While there are some difficulties with the applicant’s evidence as outlined above, these must be considered in the context of multiple iterations of quite complex factual claims. In this context, I consider that those difficulties are by no means decisive in themselves. It is necessary also to carefully weigh all of the available evidence, including the documentary and witness evidence.
[5] Migration and Refugee Division, Guidelines on the Assessment of Credibility at paragraphs 28 & 29
With regard to the witness evidence, as set out above I took oral evidence from both [Pastor A] and [Witness A]. With regard to [Pastor A], I accept that he has been supporting the applicant and his family in his role with [Church 1]. I accept that it is his understanding that the applicant has come to Australia for safety reasons and that it is not realistic for the applicant to return to PNG. I accept that the applicant has indicated to [Pastor A] that he is at risk in PNG. However, with respect to the events that the applicant has claimed affected him in PNG, I would attach limited weight to [Pastor A’s] evidence as it is apparent that he does not have direct knowledge of any of those events.
I note also the statements from [Pastor B]. I note that the applicant gave evidence at the hearing that he had attended [Pastor B’s] church in PNG. While [Pastor B’s] statement referred to ‘tribal fights’, it provided limited detail about such conflict and I attach limited information to the evidence in this regard. The statement does provide some support for the applicant’s claim that his parents come from [Town 2] in [District 1], a claim the applicant has consistently maintained. I note also that the applicant was able to describe travel from Port Moresby to [Town 2] in a manner which appeared consistent with his claim that he would travel to the village from time to time to meet relatives there.
I do consider the evidence of [Witness A] to be of some significance. I note that available information confirms details given by [Witness A] in her oral evidence, including that she is a [local official 1] at [Village 2], that she runs [an agency] in Port Moresby for survivors of sorcery accusations and that the [agency] is known as [Christian Agency 1].[6] I note also that she provided her date of birth in a manner inconsistent with independent evidence about her age.[7] In her evidence, [Witness A] displayed an engagement in, and knowledge of, issues related to SARV in a manner consistent with her role at the [agency]. Notwithstanding that I took evidence from [Witness A] by telephone to PNG, I am satisfied as to her identity and her genuine involvement in the [agency].
[6] [Sources deleted].
[7] deleted.]
[Witness A] gave evidence to the effect that the applicant’s wife, [Partner A], had been brought to [their agency] by police due to a threat related to SARV and that [Partner A] had been staying [with the agency] for some time. While [Witness A] was unable to pinpoint precisely when [Partner A] arrived [with the agency], I accept that the [agency] assists a significant number of people and that [Witness A] did not have written records with her at the time she gave her evidence. I accept that [Witness A] is a reliable witness and that the applicant’s wife was brought to the [agency] by police in relation to sorcery related violence and has been staying there for some months. While [Witness A] does not have direct knowledge of the events that the applicant claims affected him in PNG, I nevertheless give significant weight to her evidence. That the applicant’s wife has been staying [with the agency] in Port Moresby provides some support for the applicant’s claims to the effect that he has been accused of sorcery, and that he and his family have been targeted as a result.
I note also that the applicant has provided a number of police reports. The first purports to have been issued on [the later day in] September 2023 and provides details of 4 occurrences that the applicant claims to have reported to the police, namely those on [the dates in] November 2022, [August] 2023, [and dates in] [September] 2023. A second report is dated [in] May 2024 and relates to threats towards the applicant’s mother and sister. As discussed with the applicant, information from DFAT indicates that document fraud occurs frequently in PNG.[8] However, I must carefully consider the documentation that is before me. There are some aspects of the September 2023 report that might give rise to some concern. In particular, the surname of the officer appears initially as ‘[Officer A name variant]’ and later as ‘[Officer A]’. While this is a concern, it is certainly not decisive and might be adequately explained as a typographical error in the preparation of the document. While the language of the report is not what might be expected from an Australian police report, the DFAT information indicates that police in PNG are generally poorly trained.[9] Ultimately, any apparent anomalies in the report are not such as to lead me to conclude that the reports are lacking in all reliability. I do attach some weight to these reports as evidence that the applicant and his family made complaints to police about being targeted due to a sorcery related accusation.
[8] DFAT, Country Information Report Papua New Guinea (6 September 2022) at p.25
[9] Ibid. at p.23
With regard to independent evidence, I note also that there is independent corroboration for the applicant’s claim that there was tribal violence in [Settlement 1] in [Town 1] [in] November 2022.[10] While the relevant report suggested that two people from [Town 2] in the Eastern Highlands had been arrested, this is not necessarily at odds with the suggestion that there was conflict between people from [Town 2] and another tribal group. I note that the report referred to an ‘ethnic fight’.
[10] [Source deleted.]
I have carefully weighed all of the available evidence. In doing so, I note that, in SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[11] A similar approach is endorsed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection.[12]
[11] SZLVZ v MIAC [2008] FCA 1816 at [25]
[12] UNHCR, re-issued February 2019 at [203]–[204]
As discussed above, there are aspects of the applicant’s evidence that have caused me some concern, including a number of inconsistencies. However, the applicant has provided multiple iterations of his claims, in writing and then at interview and multiple appearances before the Tribunal. He has provided evidence in some detail. Notwithstanding the complexity of his claims, he has largely provided a consistent account of the circumstances that he claims give rise to his fear of harm in PNG. His claims are consistent with independent information about SARV in PNG. I have considered also the other available evidence, including the witness evidence and the documentary evidence. For reasons discussed above, I give significant weight to the evidence of [Witness A] in particular. I also give some weight to the police reports.
In all the circumstances, I consider that this is a case in which it is appropriate to give the applicant the benefit of the doubt. I am willing to accept that, notwithstanding that the applicant has lived in Port Moresby, his parents are originally from [Town 2] in [District 1] in the Eastern Highlands. I accept that he visited the village from time to time, that he was the subject of a sorcery related accusation when he was visiting in June 2019 and that this has given rise to a threat to him and his family. I accept that the accusation arose from the death of [Driver A], who was from the neighbouring [Village 1]. I accept that the applicant was one of a number of people identified as having been responsible for the death as a result of a house cry ritual. Although I am concerned that the applicant may have exaggerated or embellished the severity of his mistreatment and injuries, I am willing to accept that he was taken away by people from [Village 1], that he was mistreated and that he was able to escape. I accept that he did not report to police but went to Port Moresby. Although the evidence suggests that the applicant was able to live in Port Moresby for some time without incident, I accept that there was an event in [Settlement 1] in [Town 1] on [the day in] November 2022 in which there was conflict between people from his village and another tribal group, and that this was reported to the police. I am willing to accept that there were incidents in Port Moresby in August and September 2023 that caused the applicant concern, that he contacted a person from his village who was able to identify the men as having been connected with earlier events in the village and that this was reported to the police as suggested by the police report of [September] 2023. I accept that members of the applicant’s family have been subject to threats since his departure, that these are connected to the accusation of sorcery against the applicant and that this has caused the applicant’s wife to seek shelter [with an agency]. In all the circumstances, I accept that the applicant has been targeted by people from [Village 1] as a result of an accusation of sorcery and that the threat associated with this remains ongoing.
Refugee Criterion – First Named Applicant
Submissions from the applicant’s representative have posited ‘people accused of sorcery’ or ‘men accused of sorcery’ as particular social groups. Having regard to the independent country information and the terms of s 5L, I accept that ‘people perceived as sorcerers’ constitute a particular social group in PNG and that the applicant is a member of this group. The characteristic of being perceived by others as sorcerers is shared by each member of the group, including the applicant. Having regard to independent country information cited above in relation to the strength of belief in sorcery, I find that the characteristic distinguishes the group from society. The shared characteristic is not a fear of persecution. Although it is a characteristic that may lead a person to be persecuted, it is one that is based on the perception of the person in the eyes of others stemming from widely held beliefs and is distinct from the fear of persecution. Notwithstanding that the people in the group may not in fact be sorcerers, there is a genuinely held perception that they are.
As set out above, I have accepted that the applicant has been accused of sorcery and that this gives rise to an ongoing threat to the applicant. I accept that he is genuinely perceived as a sorcerer. The independent evidence cited above points to a high degree of violence associated with accusations of sorcery. For instance, DFAT assesses that those accused of sorcery in PNG face a high risk of societal discrimination and violence. This discrimination may include being illegally detained, beaten or tortured, having their possessions stolen, being forced to leave their communities, or being killed. Looking to the reasonably foreseeable future, I am satisfied that there is a real chance that the applicant would, for reason of his membership of the particular social group of people perceived as sorcerers, suffer harm of such a nature as to constitute serious harm (including significant physical harassment and significant physical mistreatment). With regard to s 5J(4)(a), I find that the essential and significant reason for the harm would be membership of the particular social group constituted by people perceived as sorcerers. I find also that the persecution involves systematic and discriminatory conduct as required by s 5J(4)(c) and that it also involves serious harm as required by s 5J(4)(b).
Having regard to s 5J(1)(c), I have considered whether the real chance of persecution relates to all areas of the receiving country. In this regard, I note that DFAT has observed that some people struggle to relocate to avoid issues such as SARV. DFAT states in this regard: ‘Exacerbated by the widespread take-up of mobile phones and social media, and the presence of diaspora from other parts of PNG…, those who relocate are often recognised in their new home and this information will typically be communicated to their place of origin.’[13] Although there was a period in which the applicant appears to have been able to live in Port Moresby without incident, I accept that he and his family were ultimately targeted there as a consequence of the sorcery accusation. Having regard also to the observations of DFAT, I accept that the real chance of persecution relates to all areas of PNG.
[13] DFAT, Country Information Report Papua New Guinea (6 September 2022) at p.24
In accordance with s 5J(2), a person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country. Effective protection measures are defined in s 5LA. As outlined in the information from DFAT set out above, independent evidence indicates that very few charges have been laid in relation to cases of SARV. DFAT has observed that police officers may also believe the sorcery accusations or otherwise be sympathetic to the sorcery accuser, and has indicated that the vast majority of victims do not lodge complaints in relation to SARV. More generally, DFAT has assessed that the capacity of PNG police and other security forces to provide protection for vulnerable cohorts is typically severely limited.[14] In all the circumstances, I find that effective protection measures are not available to the applicant in PNG. I do not accept that this is a case in which the applicant can take reasonable steps to modify his behaviour in any way in order to avoid the real chance of persecution (s 5J(3)). The real chance of persecution is based on a perception of the applicant by others.
[14] Ibid. at p.23
Having carefully considered all of the evidence, I find that the applicant has a well-founded fear of persecution for reason of his membership of the particular social group of people perceived as sorcerers.
I am satisfied that the applicant meets the definition of refugee in s 5H(1).
Refugee Criterion – Applicant Children
I note that DFAT has observed that sometimes whole families of SARV victims need to move out of their communities, potentially facing difficult long-term displacement.[15] This is consistent with information given by [Witness A] to the effect that sorcery accusations are passed from generation to generation. I have accepted that the applicant’s family have experienced threats due to the accusation of sorcery against the applicant and, having regard to the evidence of [Witness A], that the applicant’s wife is currently living [with an agency] due to the threat to her. In all the circumstances, I accept that the risk of harm associated with the sorcery accusation extends to the applicant’s immediate family, including his children.
[15] Ibid. at p.18
The risk of harm to the applicant children arises in particular because they are family members of the applicant, a person who is perceived as a sorcerer.
A family is capable of constituting a particular social group for the purposes of s 5J(1) of the Act. However, this is subject to s 5K, which provides that, in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family, the Tribunal must disregard:
(a) 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) any fear of persecution, or any persecution, that the applicant or 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 (a) above had never existed.
Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s 5J(1)(a) (race, religion, nationality, membership of a particular social group, or political opinion) will not have a well-founded fear of being persecuted within the meaning of s 5J.
I accept that the applicant’s family (including his children) meet the requirements of s 5L in that they all share the characteristic of their membership of the family, the shared characteristic is not a fear of persecution and the characteristic of being members of the family distinguishes the group from society. I accept that the applicant children share these characteristics. I have had regard to s 5K. While the applicant children’s fear of persecution is related to being members of their father’s (the applicant’s) family, in this case the fear of persecution or persecution relating to the applicant (the children’s father) is for one of the reasons mentioned in s 5J(1)(a). In determining whether the applicant children have a well-founded fear of being persecuted for reason of membership of the particular social group consisting of the applicant’s family, the Tribunal is not required to disregard the fear of persecution or persecution experienced by the applicant (the children’s father) as the targeting of their father and the related fear relate to one of the reasons in s 5J(1)(a), namely membership of the particular social group discussed above.

Having regard to the independent information and my factual findings in relation to threats to members of the applicant’s family, I am satisfied in relation to each of the applicant children that there is a real chance that they would, for reason of membership of the applicant’s family, suffer harm of such a nature as to constitute serious harm (including significant physical harassment and significant physical mistreatment). With regard to s 5J(4)(a), I find that the essential and significant reason for the harm would be membership of the particular social group constituted by the applicant’s family. I find also that the persecution involves systematic and discriminatory conduct as required by s 5J(4)(c) and that it involves serious harm as required by s 5J(4)(b). For similar reasons to those set out above in relation to the applicant, I find that the real chance of persecution relates to all areas of PNG and that effective protection measures are not available to the applicant children in PNG. I do not accept that this is a case in which the applicant children can take reasonable steps to modify their behaviour in any way in order to avoid the real chance of persecution (s 5J(3)).
I find that each of the applicant children has a well-founded fear of persecution for reason of membership of the particular social group constituted by the applicant’s family. I am satisfied that each of the applicant children meets the definition of refugee in s 5H(1).
Conclusions
For the reasons given above, I am satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).
On the available evidence, there is no suggestion that any of the applicants would have a right to enter and reside in any third country such that s 36(3) would apply.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Don Smyth
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 4429

1 October 2024

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