2406638 (Refugee)

[2024] AATA 4476

2406638 (Refugee) [2024] AATA 4476 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2406638

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Clyde Cosentino

DATE:8 October 2024

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

Statement made on 08 October 2024 at 12:35pm

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – race – tribal violence – killing of family members – economic conditions – state protection – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) CLR 379
GLD18 v MHA [2020] FCAFC 2
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 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 17 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.

3. The applicant appeared before the Tribunal on 6 June 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

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. 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

11. In the department decision provided by the applicant to the Tribunal, the delegate found that the applicant provided sufficient evidence of his identity which was consistent with his 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 his receiving country for the purposes of assessing his claims for protection. 

    Protection visa application

12. The applicant provides the following information in his protection visa application.

13. He is a citizen of Papua New Guinea.

14. He was born in [Village 1], [Town 1], Papua New Guinea.

15. He has never married.

16. He last resided in Papua New Guinea at an address in Port Moresby all his life and up to when he departed Port Moresby for Australia.

17. He last arrived in Australia [in] January 2023.

18. He worked for [Employer 1 from [specified year] to January 2023 in Port Moresby.

19. The applicant makes the following written claims in his application.

20. When asked why he left his country, he claims the following:

    My name is [name]. I came from Papua New Guinea in the Enga Province.

    I first arrived in Australia [in] January 2023, on a working holiday visa 403, with other fellows from the same Province, Enga.

    During my stay in Australia, I worked very hard to pay taxes and support my family back home.

    After a few months of working, I received phone calls and saw on every media platform that my tribe and other tribes were fighting. The fighting was extended to all parts and districts of Enga Province in Papua New Guinea, and they are still fighting. It also affected other provinces of the PNG and many were killed. Young, and old males and females were killed and slaughtered like animals.

    My uncle and my brother were killed in that fight too. And I don't know where my parents and other siblings are now.

    Therefore, my life will be at risk of death if I go back to Papua New Guinea, so I decided to stay back to save my life.

    If you require evidence, I can provide it. It was also viral in the media.

21. When asked whether he experienced harm in his country, he claimed he did.  He claims:

    My life will be at risk if I go back to Papua New Guinea.

22. When asked whether he sought help within the country after the harm he claimed that he did not.  He claims that:

    The police will not be able to protect me all the time.

23. When asked whether he moved or tried to move to another part of the country to seek safety he claimed that he did not. He claims that:

    All part [of] my country is [the] same.  All in danger.

24. When asked what will happen to him if he returns, he claims:

    I will be [killed].

25. When asked whether he will be harmed or mistreated, he claimed that he has.  He claims:

    My life will be at risk of death if go back to Papua New Guinea.

26. When asked whether he thought the authorities of his country can and will protect him he claimed they will not. He claims:

    The police will not be able to protect me all the time.

27. When asked whether he can relocate to another part of his country, he claims:

    All [other] parts of the country is [the] same.  All in danger.

    Tribunal Hearing – 6 June 2024

28. 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.

29. The applicant recalled his application lodged at the department.  He recalled the claims made in that application.  He stated that all the claims made to the department were true and correct. He stated that all the claims made in that application were all the claims that he wished to discuss at the Tribunal hearing. 

30. The applicant stated that he last lived in [a town in] Port Moresby, New Guinea. He lived there for one year and three months before coming to Australia. In that time, he travelled twice back to his hometown of [Village 1]. The first time he stayed three weeks in [Village 1] and the second time he stayed two weeks in [Village 1] before going back to Port Moresby. [Village 1] is in Enga Province.

31. While in Port Moresby, he was helping one of his uncles to build his house.  His uncle was living in Port Moresby. He did not do any other work during that one year and three months in Port Moresby. He stayed with his uncle for that time.  He has no other family living in Port Moresby. He stated that, prior to living in Port Moresby, he lived in [Village 1].  He grew up in [Village 1]. He was only living in [Village 1] and grew up in [Village 1]. 

32. He has lots of family living in [Village 1].  His grandfather’s family live there along with lots of aunts who live there.  His parents used to live in [Village 1] but now they are living in [Town 1]. He keeps in contact with them once per week through Whatsapp. They have been living in [Town 1] for three to four years. They are living with his mother’s sister, the applicant’s aunt.

33. [Town 1] is also in Enga province. [Details deleted.] The applicant has visited the town a lot in the past.  He used to go and buy food in [Town 1]. He would go to [Town 1] once per fortnight or monthly to buy food.

34. The Tribunal asked whether his parents were living in [Town 1] when he was living in Port Moresby. The applicant stated that this was the case.

35. The applicant stated that his father used to be [an occupation 2] but at the moment he is at home.  His mother is not working and is at home as well.

36. The applicant stated that he has [specified family members].  [They] are all living with his mother and father in [Town 1].

37. The applicant confirmed that his parents had [number of children]. He confirmed that they are living with his parents.

38. The Tribunal asked whether he had worked at all in Papua New Guinea. He stated that he used to do labour work in [construction] work.  When asked where he did this work, he stated that it was in [Town 1]. But he used to go to other districts to do this work as well.

39. The Tribunal queried whether he never worked for an employer in Port Moresby. He stated this was correct and that he never worked for another employer in Port Moresby.

40. When asked what schooling he completed in Papua New Guinea, he stated that he completed primary school at [Town 1] primary school. He completed [grade] in [a named] Secondary school in [Town 1].

41. He confirmed that his protection visa stated that he arrived in Australia [in] January 2023. He stated that he came on a Labour Mobility visa (subclass 403). He stated that he did not come on a visitor visa. He stated that the visa he came on was for 9 months. When asked whether his visa had expired when he applied for a protection visa, he confirmed this was the case.

42. The Tribunal asked why he waited to apply for a protection visa on 17 October 2023, some ten months after arriving in Australia and after he became unlawful. The applicant stated that he did this because he got information from Papua New Guinea that he could apply for a subclass 408 visa.  However, it was refused.  He applied for this subclass 408 visa while his subclass 403 was still current. He stated that he needed a job offer letter from his employer. The person who helped him to apply for a subclass 408 visa did not tell him about this employer letter. He thinks this might be why they did not consider his subclass 408 visa application. His subclass 408 visa application was subsequently refused while his subclass 403 visa was still active.  He was granted a Bridging Visa B at the time. He thought everything was okay.  However, within a month, he did not know that his subclass 408 visa application was refused. 

43. When asked what he did next after realising that his subclass 408 visa application was refused, he stated that he went to Sydney and saw other Papua New Guinea men and discussed the situation with them.  There was a woman who told them that there was someone who could help them with a protection visa.  That is where he went. 

44. When asked what the reason was for applying for a protection visa, he stated that there was a lot of fighting in Enga Province at the time and they thought that they should apply for a protection visa at the time. They thought it was not safe and applied for a protection visa.

45. When asked why he did not want to return to Papua New Guinea, he stated that there is fighting still going on there and it is not safe to go.  There are demands for compensation for people being killed. The fighting has not stopped. People would say that it has but it has not.  The fighting is still happening between people. 

46. When asked where the fighting was happening, he stated in [Town 1] and it is a “big fight” that came up. The fighting has been going on for seven or eight months.  People have told him that the fighting has stopped.  He thinks that there are still things going on there.

47. When asked whether his family members have been affected by the fighting, he stated that they have.  He stated that they have been affected because it is a big fight.  There are many tribes fighting.

48. When queried that his family have been safe to this point, he stated that his family has been safe except his cousin brother (on his grandfather side) and one uncle who was killed by the fighting. When queried by the Tribunal that all his siblings have been living safely with his parents in [Town 1] for the last three to four years, the applicant confirmed this was the case.

49. The Tribunal asked whether this is the only reason why he does not want to return to Papua New Guinea.  The applicant confirmed this was the case. The other reason is that he feels sorry for his parents.  He wants to support them back at home by staying in Australia and sending money back to them. He confirmed that he sends money back to his parents.

50. When asked why he thinks the police or authorities cannot protect him in Papua New Guinea, he stated that the fighting is big, and people are using lots of guns.  He stated that the police do not come where the fighting is big. The police do not address the fights because it is too risky.  If he goes back too early, it will be risky for him.

51. The Tribunal asked why he cannot live safely in Port Moresby if he returned.  It indicated that the applicant lived with his uncle there already for one year and three months coming to Australia. The applicant stated that his uncle has a large family. At the time, he was helping his uncle to build his home. The only time he could live with his uncle was when he was building his uncle’s house and helping him.

52. The Tribunal asked whether there was anything else he wanted to say in support of his claims. The applicant stated that he wished to stay in Australia at this time. The fighting back at home has not really stopped.  The fighting is still going on, but people say it has stopped. Some time ago, one of his uncles was attacked.  He was hospitalised but he is okay now.  The compensation money has not been sorted out yet.  The applicant would like to stay in Australia until things are sorted out at home. Then he can look at going back.

53. The Tribunal raised its concerns that he has never mentioned that his uncle was attacked and hospitalised in his application. The applicant stated that the incident just happened the week before the hearing. He stated that he was stabbed.

54. The Tribunal then indicated that it would like to raise some concerns that might have arisen in his evidence. The Tribunal reminded the applicant that it had not made up its mind at all about his application at this time and would not do so until it assessed all the evidence after the hearing.

55. The Tribunal indicated that in his application, he lived in Port Moresby all of his life before coming to Australia. At the hearing, he stated that he was there for one year and 3 months and that he grew up in [Village 1]. It indicated that this new evidence might appear to be a significant inconsistency and that it could go to the credibility of his claims either partially or in whole because it is inconsistent information about living at two entirely different places.  The applicant stated that the correct information is that he grew up in [Village 1] and that he only moved to Port Moresby to help build his uncle’s house.  He was in Port Moresby when he applied to come to Australia.  He grew up in his village.

56. The Tribunal indicated its possible concerns that he made claims in his application that the fighting was in Enga and that, at the time, young and old males and females were killed and slaughtered like animals. It indicated that he stated very clearly that he did not know where his parents and siblings were now.  At the hearing he stated that his parents and siblings have been living in [Town 1] continuously for three to four years. He also stated at the hearing that he keeps in close contact with them.  The Tribunal indicated that this inconsistency between his written claims and his oral evidence might be significant and go to the credibility of his claims. The applicant stated that when the big fight occurred his parents moved.  He did not know where they moved to.  He stated that they may have moved to surrounding districts to stay with villagers there.  He stated that he could not contact them because they did not have a mobile phone and he could not contact them for a while.  He could not contact them for three months and some weeks. The Tribunal indicated that this response might be inconsistent with the evidence that he provided at the hearing about his parents.

57. The Tribunal indicated its possible concern that there might appear to be a possible inconsistency between his evidence at the hearing where he stated that he never worked in Port Moresby and with his application which states that he worked between [year] to 2023 with [Employer 1] in Port Moresby.  The applicant stated that his [occupation 1] job was not in Port Moresby. He was helping to [with occupation 1] in [Town 1].  It was not a real job.  It was a casual job.  The Tribunal put to him that inconsistencies have arisen with this comment. It indicated that he had stated at the hearing that he had only worked in construction in [Town 1] whereas at the hearing he stated that he was only [doing occupation 1] in [Town 1]. The applicant stated back in Port Moresby he did not work.  He only helped his uncle to build his house.  He did not work for a [occupation 1] company there. The Tribunal indicated that this inconsistency between what he wrote in his application and the evidence he gave at the hearing about his work might go to the credibility of his claims. The applicant stated that he sent all his evidence and information to the person who did the application on his behalf.  He stated that this person might have written information in the application that he did not know about.  The applicant stated that he did not really know.

1. The Tribunal indicated that it might be the case that he applied for a protection visa in Australia solely to stay longer in Australia and to support his family back in Papua New Guinea. The applicant confirmed that he did apply to stay in Australia to support his family. because of the fighting back at home. He would like to stay and work and support his family.

2. The Tribunal indicated that he raised the claim that he wanted to support his parents while working in Australia. The applicant confirmed this. The Tribunal indicated that general economic conditions in PNG which may result in economic disadvantage, might not amount to persecution. While persecution may take a variety of forms of social, political and economic discrimination, persecution must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[1] Cost of living pressures, economic insecurity, supporting his family while working in Australia, all might not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment.  The applicant responded that, before, his family in the village used to be able to have access to clean water from the mountain and life was easy. At the moment, they have moved to be with their aunt.  They need money to buy food to and to support themselves. He would love to stay in Australia to support his family and his siblings with school fees. When things have been sorted out and the compensation has been sorted out relating to the people that have been killed, he can go back. At the moment, he would love to stay here and work and support his family – his parents and his siblings.

   [1] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429

3. The Tribunal indicated that complementary protection obligations are concerned with intentional acts or omissions by third persons.[2] The risk to the applicant or his family, as a result of the state of the economy, cost of living pressures and economic insecurity would appear to be one faced by the population of the country generally and not faced by him personally.  These conditions faced by him would apply to all citizens in Papua New Guinea.The applicant responded that he agreed with what the tribunal as saying.  He stated that if fighting has calmed down, he can consider going back home.

   [2] GLD18 v MHA [2020] FCAFC 2.

4. The Tribunal indicated that his staying in Australia to support his family might not amount to any serious harm or significant harm. He stated that they are in town now and are safe.  However, back in the village it is not safe for them. 

5. The Tribunal asked him why he cannot go back to [Town 1] and be safe there.  He has given evidence that his parents are safe there, his siblings are safe there and his family are safe there. The applicant stated that he would like to go back to [Village 1 variant].  He has two houses there.  It is easy for him to live there.  It is difficult to live in [Town 1] with his parents and siblings. It is difficult to live there because they are living with the aunt. It is difficult to live with them because there are a lot of people in the house. He stated that, when the fighting subsides, he will consider going back and building a house in [Village 1 variant] and bring them back. He stated that it is quite a lot to live together. He would rather stay in Australia and support his family.  There are too many people living in [Town 1] already.

6. The Tribunal indicated that he raised new claims and provided new evidence at the hearing that were not in the protection visa application.  The Tribunal indicated that this new information might go to showing that there is a significant inconsistency with what he wrote in his original application and evidence that he provided at the hearing.

7. The Tribunal indicated that it might need to consider s 423A of the Act and read out the section to him and asked for his response. The applicant responded that, at the time of refusal of the application, they said that he could raise points he thought needed should be raised.  At that time, he realised that, because they had refused the application he could not raise those points anymore so he is raising the points at the Tribunal instead.

8. The Tribunal indicated that it was ten months after he arrived in Australia before lodging a protection visa.  This delay of ten months might be significant and might show he did not have a genuineness of fear of suffering harm in Papua New Guinea and it might go to the credibility of his claims as well. The applicant stated that since he arrived on his subclass 403 visa, he stayed on this visa for eight months.  When it came up to nine months, he sought to apply for a Bridging Visa B.  He thought that a Bridging Visa B was a good visa. His employer found out that he was on a Bridging Visa B, he told him that the visa was not okay for when his subclass 403 visa was expired.  He ended up staying at home for three weeks and not working. By that time, the fights happened again at home, and he decided to apply for a protection visa at that time.

9. The Tribunal asked how long the fighting in Enga Province had been going on for. The applicant stated that it started in late December 2023 or January 2024.

10. The Tribunal indicated that it might be that there is no real chance that he will suffer serious harm or that there is real risk of suffering significant harm if he returned to Port Moresby.  The applicant stated that Port Moresby is a big city.  If people see each other from the different tribes, there will always be a fight between them, even in Port Moresby.

11. The Tribunal indicated that it has raised a number of inconsistencies throughout the hearing and with his protection visa application.  It indicated that this might go to the credibility of specific claims or his claims overall. The applicant stated that he was not clear with all the information.  He did his best to answer all the questions that were asked of him. 

12. The Tribunal asked if there was anything else he wanted to add in support of his claims. He stated that if he could stay for some more time.  If things get better back at home, he would consider going back.  If he could stay, he would be grateful.  He would like to stay a little longer.

    Analysis, reasons and findings

13. 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.[3] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[4]

    [3] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

    [4] 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.

14. 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.

15. 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.

16. Having considered all the evidence before it, and in its entirety, the Tribunal does not find the applicant to be credible in his claims for the reasons given below.

17. The applicant made it clear at the hearing that he recalled the claims made in his protection visa application, that all the claims made in that application were true and correct, and that they were the claims that he wished to raise at the hearing. 

18. On the evidence before it, and for the reasons given below, the Tribunal has significant concerns about the credibility of the applicant’s claims which are that he received telephone calls (and saw media platforms) that his tribe and other tribes were fighting each other in Enga Province, that the fighting has extended to all parts and districts of Enga province, that they are still fighting, that the fighting has effected other provinces of Papua New Guinea, that many were killed, that young and old males and females were killed and slaughtered like animals, that his brother and uncle were killed in the fighting, that another uncle was attacked and injured in the fighting, that his parents have disappeared and he does not know where they are now, that there has been compensation arising from victims of the conflict and that his life would be at risk if he returns to Papua New Guinea and that the second part of his motivation for applying for a protection visa was because he feared that he would suffer serious harm or significant harm if he returned to Enga Province.

19. The only evidence before the Tribunal is the applicant’s brief claims made in his protection visa application and his oral evidence.  The Tribunal must consider all the available evidence which has been made available before it.  At the very commencement of the hearing, the Tribunal gave the applicant another opportunity to change anything in his protection visa application by asking him whether everything in that applicant was true and correct and whether these were the claims he wished to discuss at the hearing.  The applicant gave evidence that the claims were true and correct as written and that he wished to discuss those claims at the hearing.  The Tribunal, therefore, can only make an assessment on the available evidence before it. 

20. The Tribunal has considered all the evidence in its entirety and has given particular consideration to his written claims (which he stated were true and correct at the hearing and which he stated were the claims which he wished to discuss at the hearing) and his oral evidence given at the hearing.  The Tribunal has assessed that the contradictions and inconsistencies of evidence that have arisen between his 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) are material to the applicant’s claims overall and therefore go to the credibility of his claims overall.

21. Firstly, the applicant made serious claims in his written application that young and old men and women “were killed and slaughtered like animals” in the fighting in the province. He provides no supporting documents or information at all (which indicated in any way that this fighting did occur or was still occurring) to the department or to the Tribunal at any stage, particularly when given the opportunity to do so by the Tribunal after he lodged his review application and when he was invited to attend the hearing in its invitation letter to provide any further supporting documents for his claims.   As mentioned above, 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.[5]  The applicant has made no effort at all in supporting these claims.  The Tribunal does not have any evidence before it to make any findings that this has occurred. The Tribunal has significant doubts about this occurring given the other contradictory and inconsistent evidence that the applicant which the Tribunal will outline below.

    [5] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

22. The Tribunal has concerns that, after making serious claims about the deaths of people that occurred in the fighting (with no supporting information or document to support this) he then goes on to claim in the next sentence that “My uncle and my brother were killed in that fight too” followed by “ And I don’t where my parents and other siblings are now” and then concluding “Therefore, my life will be at risk of death if I go back to Papua New Guinea so I decided to stay back to save my life”. The Tribunal’s significant concerns here are that he has attempted to enhance his main claim of the fighting that has occurred in Enga province (which has not been supported in any way) with another serious claim that his parents and siblings have gone missing in this conflict, and he does not know where they are. 

23. From the applicant’s own evidence at the commencement of the hearing, the applicant gave evidence that his parents, [and siblings] were alive and well and have been living in [Town 1] in Enga Province for three and a half years.  They all live together with the applicant’s aunt in [Town 1].  The applicant has given evidence at the hearing that his parents were living in [Town 1] while he was residing in Port Moresby. The applicant agreed with the Tribunal that his parents and siblings have been living safely for three and a half years in [Town 1]. The applicant gave evidence that he stays in touch with his parents once per week by Whatsapp.  When asked where was the conflict that he was referring to in his written claims, he stated in [Town 1].

24. The Tribunal finds this contradiction between him claiming in writing that he does not know where his parents and siblings are as a result of a conflict which he claims has raged in the districts, and his evidence at the hearing that his parents and siblings are alive and well and living in [Town 1] (and have been so for three and a half years, something he has known about even before he came to Australia from Port Moresby), as significant and going to the credibility of his claims here, given that it is meant to enhance his claims of serious conflict in the region.  The applicant’s evidence that the conflict is in [Town 1] itself is contradictory to his evidence that his family have been living in [Town 1] for three and a half years safely, considering that he makes the claim that this conflict is so major that it has “extended to all parts and districts of Enga Province” which also contains [Town 1]. The Tribunal finds that the applicant’s evidence at the hearing about the length of time his family have lived safely in [Town 1], clearly shows that there has never been an ethnic conflict that has occurred as claimed by the applicant. 

25. When the contradiction was put to the applicant, he attempted to explain it away by stating that his parents did move for a time period when the fighting got worse and that he did not know where they were then.  The Tribunal finds this response as contrived given that, at no stage leading up to the hearing, or during the hearing, except when it was put to him as a contradiction, did the applicant come up with this answer.

26. Furthermore, he gave evidence at the hearing that he has lots of family members (on his grandfather’s side as well as a lot of aunts) still living in [Village 1], which the applicant states is a village near [Town 1], given that he visited [Town 1] regularly from [Village 1] to do shopping.    He did not at any time give evidence that these family members were fearing any conflict.  There have been no claims made that [Village 1] is in danger in any way from any ethnic conflict.  The applicant has not made any claims at all that [Village 1] is in the firing line, so to speak, of any ethnic conflict.

27. Given its findings above, the Tribunal finds that the there has been no conflict as claimed by the applicant in or around [Town 1] district or anywhere in that region or area, that has spilled over to the districts and into other provinces.

28. Given the findings above that there has not been a conflict as claimed by the applicant in or around [Town 1] district or anywhere in that region or area, that has spilled over to the districts and into other provinces, the Tribunal finds that the applicant’s claims that his uncle and brother (cousin) were killed in this conflict as not credible at all.

29. Given the findings above that there has not been a conflict as claimed by the applicant in or around [Town 1] district or anywhere in that region or area, that has spilled over to the districts and into other provinces, the Tribunal finds that his late claim provided at the Tribunal that another uncle was injured and hospitalised (just prior to the hearing) as a result of the conflict, as not credible at all.

30. Given the findings above that there has not been a conflict as claimed by the applicant in or around [Town 1] district or anywhere in that region or area, that has spilled over to the districts and into other provinces, the Tribunal finds that his late general claim provided at the Tribunal that there is compensation to be paid among other victims of this conflict (not his family), as not credible at all.

31. There are a several other significant inconsistencies between his written claims and his oral evidence given at the hearing which the applicant was unable to reasonably explain.

32. Firstly, the applicant wrote in his application that he has lived at an address in Port Moresby all his life.  At the hearing, he gave contradictory evidence that he lived in Port Moresby for one year and three months while helping his uncle build a house and that he lived in [Village 1]. Secondly, he claimed in writing that he worked in [occupation 1] in Port Moresby for six years prior to coming to Australia.  He gave evidence at the hearing that he did labouring in construction in [Town 1].  When the contradiction was put back to him at the hearing, the applicant then stated that he did [occupation 1 work] in [Town 1] and not in Port Moresby.

1. The Tribunal finds these inconsistencies as significant as it goes to the applicant’s credibility of his claims overall.  He attempts, in short, to explain that he sent his information to a person who completed his application on his behalf. The Tribunal has doubts about this.  The applicant made it very clear at the start of the hearing that all the claims in his protection visa application were true and correct and that these were the claims which he wished to discuss at the hearing.  The Tribunal finds that the information that has been included in his protection visa application, and the evidence that he gave at the hearing, to be significantly inconsistent and going to the credibility of his claims.

2. The Tribunal’s findings above that it does not find the applicant’s claims credible at all, are reinforced by the applicant’s significant 10-month delay in applying for protection after arriving in Australia.  Moreover, he gave evidence that he was attempting to apply for another worker visa in Australia but did not have the right paperwork to go ahead with it. The Tribunal finds the ten-month delay and motivation for applying for a second worker visa in Australia at the end of the first worker visa, as showing a lack of genuineness of a subjective fear of suffering serious harm or significant harm were he to return to Papua New Guinea.  The Tribunal has considered his response that, after hearing that the fighting had begun again back at home, he decided to apply for a protection visa as not being credible, given that he has already stated that he tried to extend the worker visa after 9 months to work further in Australia, and given that the Tribunal has made a finding already that it does not find the conflict claims as credible.

3. The Tribunal’s findings above that it does not find the applicant’s claims credible at all, are reinforced by the applicant’s own evidence at the hearing that he feels sorry for his parents and wants to support them back in Papua New Guinea by sending money back to them.  He also wants to support his siblings in education as well from money he sends them. He stated that he currently does this now. The applicant stated that this was also a major motivation for him not to return to Papua New Guinea. The Tribunal finds, on the evidence before it, that the applicant’s main motivation in applying for protection in Australia is to continue to support his parents and siblings back in Papua New Guinea.

4. The Tribunal finds that wanting to support his family back in Papua New Guinea because of the economic conditions there does not amount to a refugee claim. The Tribunal finds that general economic conditions in Papua New Guinea which result in economic disadvantage, does not amount to persecution. While persecution may take a variety of forms of social, political and economic discrimination, persecution must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[6] Cost of living pressures, economic insecurity, supporting his family while working in Australia are not directed at the applicant for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment.

   [6] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429

5. 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 about his claims.  It finds that the applicant has lodged his claim for protection simply to prolong his stay in Australia, given his 10-month delay in applying for a protection visa, his attempt to apply for a further worker visa at the end of his fist visa, and his evidence that he wishes to remain in Australia as long as he can to support his family back in Papua New Guinea, and given that none of his claims have been found to be credible.

6. Therefore, given its findings as a whole, the Tribunal does not find credible on the evidence before it that he received telephone calls (and saw media platforms) that his tribe and other tribes were fighting each other in Enga Province.  It does not find credible on the evidence before it that there has been fighting which has extended to all parts and districts of Enga province, that there is still fighting, that the fighting has affected other provinces of Papua New Guinea, that many were killed and that young and old males and females were killed and slaughtered like animals. It does not find credible on the evidence before it that his parents have disappeared, and he does not know where they are now.  It does not find credible on the evidence before it that his brother and uncle were killed in the fighting and that another uncle was attacked and injured in the fighting. It does not find credible on the evidence before it that there has been compensation arising from victims of the conflict.  It does not find credible on the evidence before it that his life would be at risk if he returns to Papua New Guinea.  It does not find credible on the evidence before it that the second part of his motivation for applying for a protection visa was because he feared that he would suffer serious harm or significant harm if he returned to Enga Province.

7. Given the Tribunal’s findings above that the applicant has lived safely in [Village 1 variant], [Town 1] and Port Moresby, that he has family members in all three areas who he keeps in contact with, that he has an ability to work through labouring and other means, it finds that he can return safely to either Port Moresby, [Village 1 variant] or [Town 1]. Moreover, given the applicant’s own evidence at the hearing that he has two houses in [Village 1 variant], he can return safely there at any time to live.

8. 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 his own. There is no evidence before the Tribunal that indicates in any way that he is not able to return safely to his home village of [Village 1 variant], or to Port Moresby or [Town 1] if he chose to do so as well.

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The “Attachment” to this decision sets out the applicable law.

10. 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.

100.   The Tribunal finds on the evidence therefore that if he is returned to Papua New Guinea, there is no real chance that he 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.

101.   The Tribunal finds on the evidence that the applicant can return to either Port Moresby, [Village 1 variant] or [Town 1] in Papua New Guinea and live there safely.

102.   In relation to the applicant’s motivation of wanting to support his family back in Papua New Guinea because of economic conditions, the Tribunal finds that complementary protection obligations are concerned with intentional acts or omissions by third persons.[7] The risk to the applicant or his family, as a result of the state of the economy, cost of living pressures and economic insecurity would appear to be one faced by the population of the country generally and not faced by him personally.  These conditions faced by him would apply to all citizens in Papua New Guinea. 

103.   Given this finding, and 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.

[7] GLD18 v MHA [2020] FCAFC 2.

CONCLUSION

104.   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).

1. 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).

2. 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

107.   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.

…