2406505 (Refugee)

2406505 (Refugee) [2024] AATA 4139 (7 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2406505

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Clyde Cosentino
DATE:7 October 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 October 2024 at 6:58am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – victim of family violence – physical assault – mental health issues – fear of killing – internal relocation – attack on home – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 7 October 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 30 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the department), and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving country
In the department decision provided by the applicant to the Tribunal, the delegate found that the applicant provided sufficient evidence of her identity which was consistent with her narrative and biometrics. The delegate accepted that the applicant was a citizen of Papua New Guinea and there is no information before the Tribunal to the contrary. The Tribunal finds, therefore, that the applicant is a citizen of Papua New Guinea, and that Papua New Guinea is her receiving country for the purposes of assessing her claims for protection.
Protection visa application
The applicant provides the following information in her protection visa application.
She is a citizen of Papua New Guinea.
She was born in [Village 1], [District 1], [Province 1], Papua New Guinea.
She has never married.
She always talks with her mother by telephone and video calls.
She last resided in Papua New Guinea at [Village 1], [District 1], [Province 1].
She last arrived in Australia [in] December 2022.
She worked as a [Occupation 1] and had financial support by selling [products].
She completed primary schooling in [Village 1], [District 1], [Province 1], Papua New Guinea. She also completed her middle schooling in [District 1].
The applicant makes the following written claims in her application.
When asked why she left her country, she claims that she almost killed her boyfriend’s mother. She “didn’t want to kill” her but her boyfriend’s mother told “everyone in [her] home village” that she tried to kill her as a result of “accident[al] hot cooking oil [falling] down” on the “[her eyes]”. She told her son (the applicant’s boyfriend) that the applicant was the one who did this to her eyes. Her boyfriend then “pounded her and bumped her” because he tried to “get [her] eyes out to replace her mother’s eyes”. The applicant suffered “abuse” “every single day” from her family. This is why she left her country.
When asked whether she experienced harm in her country, she claimed she did. She claims that she “hide (sic) from them”. For almost “two years” she could not go anywhere because she “was so scared they [would] find [her]. She hid away and “locked [herself] in the room”. It was “really suffocating”. Her mental health suffered as a result of not being able to talk to anyone. She was really scared that her life would remain like this all the time.
When asked whether she sought help within the country after the harm she claimed that she did not. She claims that she did not seek help from anyone because she was “scared” about “going outside”. She was “scared” her boyfriend’s family would “see [her]”. She was “scared” that they would “find [her]” where she was “[hiding] from them”.
When asked whether she moved or tried to move to another part of the country to seek safety she claimed that she did not. She claims that she “never [tried] to move [to another] part [of her] country” because she was “scared” that they would find her.
When asked what she thought would happen to her if she returned to her country, she claims that her boyfriend’s family will “shovel [her] eyes” and “give” them to their mother. They will kill her.
When asked whether she will be harmed or mistreated, she claimed that she has. She claims that she was really scared for her life. She locks herself in her house and her mental stress always feels like a sickness for her.
When asked whether she thought the authorities of her country can and will protect her she claimed they will not. She claims that no one can help her because everyone does not want to intervene in her problem.
When asked whether she can relocate to another part of her country, she claims that she was thinking on a number of occasions where she could go and this is when she applied for a visa to come to Australia. She can then start a new life in Australia away from the people who can hurt her.
Tribunal Hearing – 30 May 2024
At the start of the hearing, the Tribunal explained to the applicant the refugee criterion and the complementary protection criterion separately and how they applied under Australian law respectively.
The applicant recalled her application lodged at the department. She recalled the claims made in that application. She stated that she put the application together herself. She stated that all the claims made to the department were true and correct. She stated that all the claims made in that application were all the claims that she wished to raise at the Tribunal hearing. She stated that there were no new claims to be discussed at the hearing.
The applicant stated that she last lived in [Village 1], [District 1], [Province 1], Papua New Guinea. Her village is called [Village 1]. It has 2000 to 3000 people living in it and is a large village. She has lived at this village all her life.
She has family who still live at this address. Her father, mother and [a sibling] all live in the village. [Details deleted.] She repeated that her mother, father and [sibling] still live together in the village and all live in the same house. It is the same house she lived in while living in Papua New Guinea. She lived all her life with her family in this house.
When asked whether she keeps in contact with her father, mother and [sibling], she confirmed that she did when they are “online”. She is able to communicate with them when they are online. If they are not online, then they do not communicate.
Her father and mother earn a livelihood by planting [crops] and so on, and selling these. The applicant is working in Australia and sending money back to her parents once per month. Her parents go to [Town 1] to get the money she sends them from Australia. [Town 1] is about one hour by bus from [Village 1]. When asked what work the applicant did back in Papua New Guinea, she stated she was [an Occupation 1] there.
When asked whether she is married, she said that she was not but had a boyfriend back in Papua New Guinea.
When asked what visa she applied for, to come to Australia, she stated that the governor brought forms to them to apply for Seasonal Worker visas. The applicant subsequently applied for this visa and came to Australia on a Seasonal Worker visa. The governor paid for the visa.
When asked why she wanted to come on a Seasonal Worker visa to Australia, she stated that she and her boyfriend had a fight. She was afraid of her boyfriend’s mother. This is why she applied for a visa.
When asked why she was afraid of her boyfriend’s mother, she stated that she loves her boyfriend, and he loves her. But his mother did not want her to be in a relationship with her son. So, there was hot water boiling and the applicant threw it in her boyfriend’s mother’s face. The applicant repeated that she threw boiling water on her boyfriend’s mother’s face. The Tribunal asked whether she did this on purpose. The applicant stated that she did. She stated that her boyfriend’s mother does not like the applicant. Her boyfriend’s mother insulted the applicant. It was when she insulted her again that the applicant threw boiling water in her boyfriend’s mother’s face. The applicant stated that after she poured hot water on her boyfriend’s mother, she ran away. She stated that her boyfriend’s mother was facing her when she did this to her.
When asked when this incident occurred, she stated in April 2022. When asked how close her boyfriend’s mothers house was to her house, she stated that there was water that separated them. It took about 30 minutes to walk between homes. The applicant’s house and her boyfriend’s mother’s house were in the same village.
When asked, after throwing boiling water on her boyfriend’s mother’s face, if she saw her again before coming to Australia, the applicant stated that she did not. Her boyfriend sent messages to her that he would do the same to the applicant because of what happened to his mother.
When asked whether she saw her boyfriend after this incident, she stated that she never saw her boyfriend because she was in hiding. When asked where she hid before coming to Australia, the applicant stated that there was nobody to protect her, so she ran away to Lae, and then came to Australia. When asked whether she ran away to Lae and stayed there the whole time before coming to Australia she stated yes. She stated that she was afraid and stayed in Lae. The Tribunal asked who she stayed with in Lae. She stated that she stayed with some people who were not family to her. She did not know anyone at Lae. When she ran away, she hoped that she could meet up with someone who would look after her. She saw a lady in Lae when she arrived and told her what happened. She told this lady that she was in hiding and had run away. She ended up staying with this lady. When asked how long she stayed there for, she stated that she went to Lae [in] August 2022 and stayed there until she came to Australia.
The Tribunal referred her back to the hot water incident with her boyfriend’s mother. It asked whether she stayed in her village when it happened, or did she leave straight away. She stated that she stayed in her village for a while. When her boyfriend tried to find her, she ran away to Lae.
When asked how long she remained in her village before running away to Lae, she stated that she remained three months in her village, moving from place to place, before finally going to Lae. When asked what places she went to during those three months in her village, she stated that, at night, she would come home and sleep and then during the day she would hide in a bush. When asked whether she did this every day, she stated that she did. She then ran away to Lae when she found this difficult.
The Tribunal indicated that her boyfriend knew where she lived at the time, he had met her at her house on numerous occasions while they were boyfriend and girlfriend. The Tribunal put to her that her boyfriend would be able to find her. The applicant stated that when her boyfriend came to her home, she was not there. He told her family that she needed to come home and fix the problem. The applicant was never home at the time. He would try and come during the day to find her when she was not there.
The Tribunal asked the applicant how she came to know about a Seasonal Workers visa if she was in Lae. The applicant stated that she had already applied for the visa. While in Lae, she heard that she was successful in her application and then came to Australia.
The Tribunal then asked the applicant whether it was boiling water that she threw onto her boyfriend’s mother’s face. The applicant stated that it was. She stated that she wanted to cook [vegetables]. The applicant had boiled the water. This is when she threw the water on her boyfriend’s mother’s face.
The Tribunal asked when she ran from the house whether she ever saw her boyfriend again. The applicant confirmed that she never saw her boyfriend again. The Tribunal asked whether she remains in contact with her boyfriend now. She stated that he did not have her mobile number initially but then found her mobile number and started to text her in May 2024.
When asked why she did not want to return to Papua New Guinea, she stated that her family do not want to help her. She only has [one sibling] left. If she goes back, her boyfriend will harm her. When asked why she thought her family could not protect her, she stated that she is afraid of her boyfriend. He told her family that he could do anything to her.
When asked why she thought the police could not protect her, she stated that her boyfriend has [specified family members]. They are not afraid of the police. The police will not protect her. Therefore, she needs to stay in Australia.
The Tribunal asked whether the reasons she gave were the only reasons for her not going back to Papua New Guinea. The applicant then stated that her boyfriend and his [family] burnt his parents’ house. The Tribunal asked again whether this occured. She stated that it did.
The Tribunal asked whether there was anything else she wanted to say in support of her claims. [Detail deleted.] She has no [family protection]. Her boyfriend was sending messages that she needs to be ready with her coffin. He said he will cut her to pieces. The applicant was afraid. She did not want to go back.
The Tribunal then indicated that it would like to raise some concerns with the applicant about her evidence for her comments. It indicated that at the start of hearing she stated that everything written in her application was true and correct. She had claimed in her application that she had accidentally burnt her boyfriend’s mother’s [eye] with cooking oil. She stated in her written claims that the hot cooking oil fell down and burnt her [eye]. At the hearing, she gave evidence that the applicant threw hot water on her boyfriend’s mother face intentionally. The Tribunal indicated that this might appear to be a significant inconsistency to her written claims in her application. The applicant stated that it was the cooking oil that was put on her boyfriend’s mother’s face. The hot water was boiling but there was cooking oil in it.
The Tribunal asked whether it was cooking oil or water that burnt her boyfriend’s mother’s face. The applicant stated that it was a mixture of cooking oil with water. The Tribunal raised concerns with the applicant’s evidence. It stated that it had asked the applicant twice initially if it was boiling water that burnt her boyfriend’s mother’s face and the applicant confirmed both times that it was boiling water. The applicant stated that she had forgotten that there was hot oil in the cooking water. The Tribunal indicated that this might appear to be a significant inconsistency to her written claims. The applicant stated that it was intentional because her boyfriend’s mother was always insulting her. The applicant meant to harm her.
The Tribunal raised its concerns that, in the application, she stated that her boyfriend “pounded her and bumped her” which might appear that she was claiming that he beat her. At the hearing, she stated that she ran away. The Tribunal asked whether her boyfriend beat her after the incident with his mother. The applicant stated that, at the time of the incident, he held her by the shirt, but she ran away from him.

The Tribunal indicated that she had written in her application that he beat her but now she was saying that he held her by the shirt. The Tribunal raised this as a concern as it might appear to be inconsistent evidence provided by her. The applicant stated that her boyfriend hit her and wanted to hit her in the face. He hit her back and held her shirt and wanted to punch her face but then she ran away.
The Tribunal raised its concerns that in her application she stated that she was abused by her boyfriend’s family “every single day”. However, at the hearing she gave evidence that she hid every single day and eventually escaped to Lae. The Tribunal indicated that this might appear to be a significant inconsistency to her written claims. The applicant stated that her boyfriend’s family were actually abusing her and using threatening words that were not good to her family. She was hiding because she feared for her life and then she ran away.
The Tribunal raised its concerns that in her application she claimed to have been hiding for two years. At the hearing she gave evidence that the incident occurred in April 2022 and in her application, she stated that she came to Australia in December 2022, which was 8 months after the claimed incident occurred. The Tribunal indicated that this might appear to be a significant inconsistency to her written claims. The applicant stated that she forgot about this. It might have been in 2016. She had forgotten the information.
The Tribunal raised its concerns that in her application she stated that she did not move to another part of the country to seek safety. She stated that she never tried to move to another part of the country because she was afraid her boyfriend’s family would find her. However, at the hearing, she stated that she escaped to Lae until she came to Australia. The Tribunal indicated that this might appear to be a significant inconsistency to her written claims. The applicant stated that she made her application a long time ago and so has forgotten everything in it. The Tribunal again indicated that in her written application she made it clear that she did not move to another part of the country to seek safety whereas at the hearing she made it very clear that she had run to Lae to escape. The applicant stated that she forgot about this at the time.
The Tribunal raised its concerns that in her application she stated that she hid in her room for two years, locked in and suffocating, and then claimed that her mental health was bad because of it. At the hearing, she stated that by day she hid in a bush and lived in her family home by night and then moved to Lae, where she stayed with a woman there. The Tribunal indicated that this might appear to be a significant inconsistency to her written claims. The applicant stated that she did this at night. She again stated that she had completed her application a long time ago and that she had forgotten what was written in it.
The Tribunal raised its concerns that, at the start of the hearing, she stated that she kept in contact with her family whenever there was online communication available. At the hearing, she stated that her family do not want to help her or to protect her. The Tribunal indicated that this might appear to be an inconsistency in her evidence. The applicant stated that she is communicating with her mother and father, that was all.
The Tribunal indicated that it might find it hard to believe that her boyfriend would not be able to find her in the village after the incident occurred, given that he knew where she lived and that the applicant stated that she remained in her village for a few months more before leaving it. The Tribunal indicated that she gave evidence that she came home every night. It indicated that it was conceivable that he would come to her home if he wanted to come after her, given that he knew where she lived and that he could come around either by day or night. The Tribunal indicated that it might find it hard to believe that he never found her during those few months given these circumstances. The applicant stated that he only came during the day to talk to her parents and told them that she must come back home. He only came during the day. He did not come to her home at nighttime.
The Tribunal raised its concerns that she made it clear in her application that she did not move to another part of the country. However, at the hearing she stated clearly that she moved to Lae. The Tribunal indicated that this might appear to be a significant inconsistency to her written claims. The applicant stated that she wrote this and stated this.
The Tribunal raised its concerns that she gave evidence at the hearing that her home was burnt down by her boyfriend’s family. At the beginning of the hearing, she stated that her family was still living at the same house she lived in before coming to Australia. It indicated that she never stated that her family home burnt down in her application, or at any point up to when the delegate made its decision to refuse her a protection visa, or at any point throughout the review application or at the start of the hearing when the Tribunal asked whether her family were still living at the same family home she lived in before she left. It appeared that there was never a time that she made a claim about her home being burnt down. She only raised this new claim towards the end of the hearing. The Tribunal indicated that this might be a significant inconsistency in her evidence. The applicant stated that she had forgotten about the information. When she was asked if there was anything else she would like to add, she remembered this information needed to be added.
The Tribunal indicated that, in her protection visa application, she stated she arrived in Australia [in] December 2022. She did not apply for a protection visa until 7 October 2023, which was nearly 10 months after arriving in Australia. The Tribunal indicated that this delay might go to the genuineness of her fear of harm if she returns to Papua New Guinea. It indicated that it might go to the credibility of her claim given that she said in her application that she left Papua New Guinea to come to Australia to seek protection. The applicant stated that she was afraid of her boyfriend. She only has one life. She does not want to go back to Papua New Guinea.
The Tribunal indicated that it might have credibility concerns with her claims overall. It indicated that her evidence might appear vague. It indicated that relevant evidence was not provided at the protection visa stage, nor up to the department decision, nor provided to the Tribunal when she had the opportunity to do so. It indicated that this could go to the overall lack of credibility of her claims. The applicant stated that she had forgotten what she wrote in her application. When the Tribunal asked her questions, she answered these questions. She had forgotten most of the things she had written in her application.
The Tribunal indicated that she had raised new claims at the hearing that she had escaped to Lae and that her house had been burnt down. These were not originally claimed in her protection visa application. The Tribunal indicated that this could go towards the credibility of her claim in part or as a whole. The applicant stated that she thought she had written these claims down in the application. This is why she has raised them at the hearing. She stated that her boyfriend has threatened to kill her and that is why she does not want to return to Papua New Guinea. She stated that her house burnt down when she came to Australia. The Tribunal indicated that at no time during her application process did she ever mention that her house burnt down. The applicant stated that she thought she had raised this in her application.
The Tribunal asked whether there was anything else she wanted to say in support of her claims. She stated that she was lucky in Australia and feeling safe here. Her boyfriend is saying that he has a knife and he is waiting for her. He is ready to put her in a coffin. She has only one life. She is lucky to be in Australia away from her boyfriend.
The Tribunal indicated that there were a number of inconsistencies raised throughout the hearing relating to her claims and evidence. The Tribunal indicated that this might go towards the credibility of her claims overall. The applicant stated that it had been a long time since she had written the application. She gave answers to what was asked of her at the hearing.
The Tribunal then asked whether everything had been raised that she wanted discussed at the hearing. She stated that she did not have a visa and has not been working. It is really hard for her. She does not want to go back home. She feels safe in Australia.
Analysis, reasons and findings
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[2]
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
[2] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
In particular, the Tribunal notes the following guidelines:
7. The tribunal is not bound by legal forms and technicalities or the rules of evidence. The tribunal considers all of the evidence available in order to make the correct or preferable decision. Evidence is assessed in its entirety, not just in isolated parts. The tribunal assesses evidence by weighing up its probative value and relevance to an applicant’s claims. There is no requirement in law that evidence must be independently corroborated before it can be accepted by the tribunal.
8. The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person [who] meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
… …
27. Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it to assess whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.
28. When forming a view on the credibility of claims, the tribunal should consider the overall consistency and coherence of an applicant’s account.
… …
36. The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear of persecution or significant harm.
37. A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible. The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.
Having considered all the evidence before it, and in its entirety, the Tribunal does not find the applicant to be credible in her claims at all for the reasons given below.
The applicant made it clear at the hearing that she recalled the claims made in her protection visa application, that she was responsible for putting the information in the application, that all the claims made in that application were true and correct, that they were the claims that she wished to raise at the hearing and that there were no new claims to be discussed at the hearing.
On the evidence before it, the Tribunal has significant concerns about the credibility of the applicant’s claims which are that she nearly killed her boyfriend’s mother (whether accidentally or intentionally) by cooking oil or boiling water, that her boyfriend beat her and threatened her with serious harm or significant harm, that she hid herself away in safety either at home or in bushes in her village, that she suffered mental or emotional harm, that she escaped to Lae outside of her village, that her boyfriend and his family abused the applicant every single day, that she received no support or protection from her family, that her home was burnt down, and that her motivation for obtaining a Seasonal Worker visa was to escape to Australia.
The Tribunal has considered all the evidence in its entirety and has given particular consideration to her written claims (which she stated were true and correct at the hearing and which she took responsibility for when completing her application) and her oral evidence at the hearing. The Tribunal has assessed that the contradictions and inconsistencies of evidence that have arisen between her written claims and oral evidence (as well as internal inconsistencies of evidence which arose at the hearing, as well as new claims raised at the hearing) as being material to the applicant’s claims overall and therefore going to the credibility of her claims and undermining her claims overall.
Firstly, the applicant was clear in her written claims in her protection visa application that she “accidentally” wounded her boyfriend’s mother in the [eye]. In her written claims she stated that she “didn’t want to kill” her. She stated that “hot cooking oil fell down” and that her boyfriend’s mother was injured. At the hearing, the applicant gave contradictory evidence about the same incident. She stated that the applicant intentionally threw boiling water at her boyfriend’s mother’s face after her boyfriend’s mother continually insulted the applicant. She stated that she meant to harm her. She stated that her mother was facing her when she threw the boiling water at her. The Tribunal queried her again that it was boiling water that she threw at her boyfriend’s mother to which she responded that it was. When the Tribunal indicated that this was different to her written claims which stated that hot cooking oil fell on her, the applicant responded that it was hot water that was thrown into her mother’s face, which had cooking oil in it. The applicant stated that she had forgotten that there was hot cooking oil in the boiling water.
The Tribunal has considered the applicant’s responses and finds her evidence not to be credible at all. The Tribunal finds that this is a significant aspect of her claims. When she wrote her claims in the protection visa application, she took responsibility in what was written in the claims. She stated this at the hearing. The Tribunal finds that her making written claims of accidently wounding and not wanting to kill her boyfriend’s mother, as well as hot cooking oil falling down on her to be significantly inconsistent to her oral evidence of intentionally wanting to harm her boyfriend’s mother by throwing boiling water at her face directly. The Tribunal finds that the applicant then tried to embellish the evidence even further when this contradiction was put to her by stating that it was both hot cooking oil and boiling water together that was thrown at her boyfriend’s mother face. The Tribunal does not accept her reasons that she had “forgotten” that there was hot cooking oil in the boiling water. The applicant has never mentioned the two together in either her written claims or her oral evidence at the hearing. The Tribunal finds that this significant inconsistency goes to the credibility of her claims. Accordingly, the Tribunal does not accept that either hot water or hot cooking oil was thrown at, or fell on, her boyfriend’s mother’s face or [eye] nor did it occur accidentally or intentionally, given that the Tribunal does not accept that this incident occurred at all.
Secondly, the applicant has stated in her written claims that she went into hiding for two years. At the hearing, she stated that the incident with her boyfriend’s mother occurred in April 2022 and that she subsequently came to Australia in December 2022, which was a total period of eight months after the claimed incident occurred. The Tribunal finds that this eight-month claimed period is significantly inconsistent to the two years of hiding which she stated in her written claims. The Tribunal has considered her response that she had forgotten about the period, that she had forgotten about the information and that it might have been in 2016. The Tribunal is unsure how “2016” could be significant in any way in answering this inconsistency. Furthermore, the applicant stating that she had “forgotten” about the information and the period does not answer the significant inconsistency between the time period claimed in her written statement and the time period provided at the hearing. The Tribunal finds that the applicant’s account of this time period is not credible at all. Given this assessment, the Tribunal finds that these claims are not credible at all.
Thirdly, the applicant stated in her written claims that she hid in her room for two years, was locked in and felt suffocated, claiming that her mental health was bad because of it. At the hearing, she stated that, for three months, by day she hid in a bush and at night she stayed in her family home before moving to Lae to stay with a stranger when her boyfriend tried to find her. The Tribunal finds her written claims and her oral evidence to be significantly inconsistent and going to the credibility of her claims. The Tribunal does not accept the applicant’s responses that she had completed her application a long time ago and that she had forgotten what was written in it as answering the contradiction between her written claims and her oral evidence. The Tribunal finds that the applicant would know if she was hiding for two years in her room, locked inside and feeling suffocated, or whether she was hiding three months in a bush in her village during the day and at her family home at night before then moving to another province. The claims that she made in her written claims about her hiding from her boyfriend and his mother and the evidence that she gave at the hearing is significantly inconsistent and goes to the credibility of her claims. Given this assessment, the Tribunal finds these claims are not credible at all.
Fourthly, the Tribunal does not find it plausible on the evidence provided that the applicant could remain unseen by her boyfriend for three months (given that she has given evidence that she came home every night to stay at her home after hiding in a bush during the day) nor that her boyfriend would not know that she was home during that time. It does not accept her response that he would only come by day but would never find her at home or that he would not wait around to see if she returned by early evening or by night. The applicant gave evidence that it was only a 30-minute walk between her boyfriend’s home and her home and that her boyfriend knew where she lived, having been to her home on a number of occasions previously. Given this assessment, the Tribunal finds that this claim is not credible at all.

Fifthly, the applicant stated in her written claims that she did not move to another part of the country to seek safety giving the reason that she did not do so because she feared her boyfriend’s family would find her. At the hearing, she gave evidence that she went to Lae after three months in hiding in her village and staying there for five more months before coming to Australia. The Tribunal finds that her written claims and the evidence that she gave at the hearing to be significantly inconsistent. The Tribunal has considered her response that she had forgotten what was written in her written claims because it had been written a long time ago. The Tribunal does not accept this response given that the explanation does not explain the completely differing accounts between her written claims and her oral evidence. The applicant has made it clear in her protection visa that the last place she resided at in Papua New Guinea was in [Village 1]. Nothing is mentioned at all about any stay in Lae. The applicant stated at the start of the hearing that her last place of residence was in [Village 1] with her family. Nothing was mentioned at all about having stayed in Lae for several months. Given this assessment, the Tribunal finds that this claim is not credible at all.
Sixthly, the applicant stated that she moved to Lae because she felt that she was not being protected by her family. There was no mention at all by the applicant in her written application that she did not feel protected by her family. There was no mention in the application that she moved to Lae at all. Moreover, at the start of the hearing, the applicant stated that she keeps in contact with her family when there is online communication available. The applicant did not mention at all that she is estranged from them in any way because of any misgivings about them not wanting to protect her. In fact, she gave evidence at the hearing that she sends money back to them once a month, and that her parents go to [Town 1] to collect the money that she sends them. Given this assessment, the Tribunal finds that this claim is not credible at all.
Seventhly, the applicant stated in her written claims that her boyfriend “pounded her” or beat her, only then to give evidence at the hearing that he grabbed her shirt before attempting to explain that he hit her and then grabbed her shirt before she ran away. The Tribunal finds that the applicant’s accounts here are significantly inconsistent and that she created a response in the sole attempt to answer this inconsistency. Given this assessment, the Tribunal finds that this claim is not credible at all.
Eighthly, the applicant claimed in her protection visa application that she was abused by her boyfriend’s family “every single day”. At the hearing the applicant gave evidence that she hid every single day and eventually escaped to Lae away from her village. The Tribunal finds her oral evidence as significantly inconsistent with her written claims. The applicant responded that her boyfriend’s family were abusing her and using threatening words that were not good to her family and that she hid because she feared for her life and then ran away. The Tribunal does not accept this response given that the applicant has not explained at all how her boyfriend and his family came to be abusing her every single day when she had given evidence that she hid away from them for fear of her life during the entire time after the claimed incident and until she departed for Australia. Given this assessment, the Tribunal finds that the applicant’s boyfriend and family did not abuse her every single day as claimed by her and therefore does not find her claim here credible at all.
Ninthly, the Tribunal finds that her new claim that her family home was burnt down by her boyfriend to be fabricated and not credible at all. This claim was not included in the application, nor was it provided to the department up to its making of its decision on her visa application. This claim was not provided to the Tribunal at any point from the review application stage up to the hearing, even considering her response that the claimed incident occurred when the applicant was in Australia. The Tribunal finds it significant that the applicant provided evidence to the Tribunal at the start of the hearing that her mother, father and other family members still live in the same family home that she lived in prior to coming to Australia. The applicant made no mention at all at this time that the family home had burnt down and that her family members were living elsewhere. Given its assessment, the Tribunal finds that this new claim has been fabricated and therefore does not find her claim here credible at all.
Finally, the Tribunal finds that the applicant’s 10-month delay in applying for a protection visa after arriving in Australia as going to the genuineness of her subjective fear of suffering serious harm or significant harm. The Tribunal notes the applicant’s evidence that she applied for a Seasonal Worker visa in order to escape from her boyfriend but made no attempt in Australia to apply for protection at the earliest reasonable opportunity. Given that the Tribunal has made findings that the applicant’s claims are not credible at all, it finds that the lengthy delay in applying for a protection visa is consistent with her lack of genuineness of a subjective fear of suffering serious harm or significant harm were she to return to Papua New Guinea.
The Tribunal has considered all the evidence as a whole and has made an assessment of the claims both individually and cumulatively. Given its findings above, the Tribunal finds that the applicant has not been credible at all about any of her claims. It finds that the applicant has lodged her claim for protection simply to prolong her stay in Australia, given her 10-month delay in applying for a protection visa (after having claimed that she came to Australia to seek protection) and given that none of her claims have been found to be credible.
Therefore, given its findings as a whole, the Tribunal finds on the evidence before it that the applicant did not try and kill her boyfriend’s mother (either accidentally or intentionally) by hot cooking oil or boiling water. It finds on the evidence before it that her boyfriend did not beat her or threaten her with serious harm or significant harm. It finds on the evidence before it that she did not hide herself away in safety either at home for two years or in bushes in her village for three months or at night at her home for three months. It finds on the evidence that her boyfriend and his family did not abuse the applicant every single day as claimed. It finds on the evidence before it that she did not escape to Lae and stayed with a stranger there before coming to Australia. It finds on the evidence before it that her home was not burnt down by her boyfriend. It finds on the evidence before it that her motivation for obtaining a Seasonal Worker visa was not to escape to Australia but to prolong her stay in Australia. It finds on the evidence before it that she did not suffer mental or emotional harm given that the Tribunal does not accept that any of her claims (that she stated triggered her mental or emotional harm in the first place) are credible.
Given the Tribunal’s findings above that the applicant is not estranged from her parents or family, and that she assists them financially each month and contacts them frequently at the family home that she lived in prior to coming to Australia, it does not accept her claims that she cannot go back to them because they do not want to help her. The Tribunal finds that she has family support whenever she needs it in her village of [Village 1] and can return to the same family home she lived in when she first left Papua New Guinea.
The Tribunal finds on the evidence that the applicant was able to apply for and obtain a Seasonal Worker visa and travel to Australia on her own. There is no evidence before the Tribunal that indicates in any way that she is not able to return safely to her home village of [Village 1].
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. The “Attachment” to this decision sets out the applicable law.
The Tribunal finds that:
a.The applicant is a citizen of Papua New Guinea and a non-citizen in Australia.
b.The applicant has no credible claims for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.
The Tribunal finds on the evidence therefore that if she is returned to Papua New Guinea, there is no real chance that she would suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) and defined in s 5J(1) of the Act.
The Tribunal finds on the evidence that the applicant can return to [Village 1] in Papua New Guinea and live in her family home with her family members there.
Given that the Tribunal has found the applicant’s claims not to credible at all, it finds that there do not exist substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Papua New Guinea, there is a real risk that she will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

101. The Tribunal affirms the decision not to grant the applicant a protection visa.
Clyde Cosentino
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 4139

7 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction