2407877 (Refugee)

2407877 (Refugee) [2024] AATA 4397 (10 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2407877
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Wayne Pennell
DATE:10 September 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 10 September 2024 at 11:00am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – fear of harm from tribal fighting and election-related violence – tribe blamed by neighbouring tribe for inciting violence and causing two deaths – no direct involvement by applicant in election – threats, and attack after moving to city – no departure on first visa – delayed departure and return on second visa – applied soon before visitor visa ceased, partly to gain work rights – authenticity of documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 420, 424AA, 425
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v MHA [2019] FCA 836
Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA (1994) ALD 346
Subramaniam v MIMA (1998) VG310 of 1997
Subramanian v MIMA (FCA, Carr J, 10 March 1998)
SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34
Zhang Su Rong v RRT [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 1 March 2024.
The applicant, who is a citizen of Papua New Guinea (‘PNG’), applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to PNG, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]
[2]The Department of Home Affairs received the applicant’s application on 17 October 2023.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] He was not represented throughout the review process, and on 18 June 2024 the Tribunal dispatched to the applicant’s email address a letter advising him that the Tribunal had considered all the material before it but was unable to make a favourable decision on that information alone. He was invited to attend a hearing in regard to his review application scheduled for 15 August 2024. Also included with that invitation was a ‘Response to hearing invitation’ template (‘template’) and he was asked to return the completed template to the Tribunal within seven days. It was not until 13 August 2024 that the applicant responded to the Tribunal’s email and he provided the completed template, along with some other supporting documents. The contents of those documents are discussed later in these reasons.
[5]The Tribunal received the applicant’s review application on 28 March 2024.
CRITERIA FOR A PROTECTION VISA
The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
[6]Migration Act 1958 (Cth), s 36.
[7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act provides that a criterion for a Protection visa is that the applicant for the visa is a non‑citizen in Australia in respect of whom the Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]
[8]Migration Act1958 (Cth), s 36(2)(a).
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[9] 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.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, 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.[11] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act, which are extracted in the attachment to this decision.[12]
[11]Migration Act 1958 (Cth), s 5J(1).
[12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[14] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, which are extracted in the attachment to this decision.[15]
[13]Migration Act 1958 (Cth), s 36(2)(a).
[14]Migration Act 1958 (Cth), s 36(2)(aa).
[15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]
[16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]
[17]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of PNG and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[18]
[18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[19]
[19]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.
[20]Migration Act 1958 (Cth), s 499.
MATTERS LEADING UP TO THE REVIEW HEARING
The applicant has twice travelled to Australia. His first trip took place in March 2007 and he stayed for approximately two weeks before returning to PNG. In regard to his second trip, he was granted a Tourist visa on 13 April 2023, and it took him over three months before he departed PNG and travelled to Australia, where he arrived [in] July 2013. His Tourist visa was valid for three months after his arrival, however nine days prior to his visa expiring, he lodged an application with the Department for a Protection visa.
The claims expressed in his application are that he is at risk of serious harm, or death, due to tribal fighting in the Western Highlands region of PNG. During the 2017 general election, election-related violence resulted in two men being shot on a bridge in the applicant’s village which borders the Western Highlands and Wabag provinces. He went on to claim that his cousin had contested for a seat in the [District] election, and his (the applicant’s) tribe had been blamed by a neighbouring tribe for inciting violence and causing the death of the two men.
The applicant claimed that he is at risk of ‘pay-back killing’ and that he has received death threats. He further claims that individuals who are educated, or very close to the tribe, are identified as targets for revenge killings. He gave an example of returning to [Town 1] for his father’s burial in 2023, and was verbally threatened at the markets. He claimed that he reported this incident to the [Town 1] police station but it was not investigated because the police require bribery in order to take action.
In regard to him relocating to another part of PNG for his own safety, the applicant said that he cannot relocate in PNG because he would be identified in any part of PNG by another tribesman. He also said that if he relocated and left his employment, it may take years to find another job.
To support his application, the applicant relies upon the following documents.
(a)Handwritten Statutory Declaration by [A], ‘Village Court Magistrate’, [Village] Court, dated 24 March 2023.
(b)Typed letter by [A], ‘Peace Officer – [Village] Court’, dated 23 March 2023.
(c)Identification Card for [A], Department of Justice and Attorney General, designation ‘Peace Officer – [Village] Court’, valid until 31 December 2022.
(d)Applicant’s handwritten statement of claims (undated).
(e)Employment reference from [Employer 1] dated 31 October 2023.
(f)Two employment references from [Employment agency], dated 6 May 2018 and 28 March 2023.
(g)Two employment references from [Employer 2], dated 6 July 2016 and 15 November 2017.
(h)Two employment reference from [Employer 3] (both undated).
(i)Employment reference from [Employer 4], dated 31 May 2012.
(j)Statement by Constable [Mr B], [Town] Police Department (undated).
(k)Applicant’s statutory declaration declared at [Suburb 1] Court House, dated 3 March 2023.
(l)Educational certificates.
On 23 October 2023, the Department wrote to the applicant and acknowledged receiving his application. In that letter, he was reminded that as his application form stipulated, all claims, supporting documentation and evidence should have been provided when he lodged his application. He did not respond to that letter or provide any additional material to the Department.
Subsequently, he was invited to attend an appointment with the Department scheduled for 2 November 2023. The purpose of that appointment was so that he could provide his personal identifying particulars. He was also prompted that he could take to that appointment any material or evidence to support his claims.
On 9 January 2024, the Department wrote to the applicant and invited him to participate in an interview undertaken by remote video link on 24 January 2024 to discuss his application and his claims. He participated in the interview and at a later time he provided to the Department the following documents.
(a)Letter (single page) purportedly from [Mr C], Admin Sergeant, [Suburb 2] Police Station, dated 29 January 2023.
(b)Letter (single page) purportedly from [Mr D], Senior Sergeant, Port Moresby, Royal PNG Constabulary, dated 29 January 2024.
After assessing the applicant’s application, his claims and his responses to the Department during the interview, the delegate made a decision on 1 March 2024 to refuse his application. He was provided with a copy of the delegate’s Decision Record on the same date.
Subsequent to that, on 28 March 2024, the applicant lodged his review application with the Tribunal, and in doing so, he provided the Tribunal with a copy of the delegate’s Decision Record. He also provided a short typed statement of facts (one page), a photograph of what purports to be scarring on a part of his body and a screen shot of an exchange of text messages.
In acknowledging the receipt of his review application, the Tribunal wrote to him on 11 April 2024 advising that if he wished to provide any material or written arguments for the Tribunal’s consideration, then he should do so as soon as possible.
On 11 June 2024, the Tribunal dispatched an email to the applicant to inform him that his file was being prepared for allocation to a member. He was advised that if he had any additional information that was relevant to his application, then he should provide that to the Tribunal as soon as possible. He was also provided with a link to a pre-hearing information form and asked to complete the form and return it to the Tribunal within seven days. He did not respond to the Tribunal’s email; or provide the completed pre-hearing information form; and nor did he at that stage of the proceedings provide any other information, material or evidence to the Tribunal.
On 18 June 2024, the Tribunal sent an email to the applicant and enclosed an invitation for him to attend a hearing scheduled for 15 August 2024. Included with the invitation was a ‘Response to hearing invitation’ template (‘template’) and he was asked to complete the template and return it to the Tribunal within seven days.
On 14 August 2024, the Tribunal received two emails from the applicant. In the first email, he enclosed a completed copy of the template indicating that he would be personally attending the hearing. The second email enclosed a number of documents, including:
(a)a handwritten (single page) medical report form purportedly dated 03/06/2023 relating to an incident where the applicant received an injury on 3 June 2023;
(b)a typed (single page) letter dated 12 August 2024 purportedly under the hand of Constable [E] of the [Suburb 2] Police Station;
(c)a typed (single page) letter dated 8 August 2024 purportedly signed by [F] and [G] from the [Government office] in Port Moresby;
(d)a character reference (single page) dated 12 August 2024 from [Mr H], Pastor of the [Church] in Port Moresby; and
(e)a single page letter dated 29 July 2024 purportedly from the applicant’s wife, [Ms I].
In arriving at a decision in this matter , the Tribunal has considered all of the material provided by the applicant to both the Department and the Tribunal.
REVIEW HEARING AND EVIDENCE
The applicant told the Tribunal that he has a sister living in Perth and a brother living in Sydney. His sister arrived in Australia about 10 to 15 years ago, and his brother moved to Australia about 14 years ago. When asked about any other siblings, he said that he had two younger brothers who are aged in their 20s. Although he did not know their exact ages, he described that his youngest brother is ‘probably 24’ and the other brother is ‘probably 27’. Those two brothers both lived in [Town] until late 2023, however they have since moved down to Lae to work and live with their uncle who runs a [company]. In regards to his mother, she lived in [Town] until about a month ago (July 2024). She has now moved down to Port Moresby for medical treatment and she lives with relatives. His father was a long time employee in a [workplace] in [Location], however he has since passed away.
In regard to the applicant’s migration history held by the Department, subject to the provisions of section 424AA of the Act, it was carefully outlined to him that the Tribunal was in possession of his migration history which the Tribunal considered would be the reason, or part of the reason for affirming the decision under review. As far as it was reasonably practical, the Tribunal made sure that he understood why the information was relevant to the review, and made sure he understood the consequences of the Tribunal relying upon that information in affirming the decision under review. He was then invited to comment on and/or respond to the information and he was told that he may seek additional time to make his comments or response. It was explained to him that if he did require additional time, the Tribunal would adjourn the review hearing if it was considered that he reasonably needed that additional time to make the comment or response. He indicated that he did not need time to respond.
The relevance of his migration history is that he was granted a Tourist visa on 4 February 2020 (‘first visa’) which expired on 4 February 2023. He did not make use of that visa and did not travel to Australia. A second Tourist visa was granted to him on 3 April 2023 (‘second visa’), yet it took him over three months before he departed PNG on 26 July 2023 when he travelled to Australia. When asked why he did not travel to Australia when he was granted the first visa, he said that he had work and family commitments, as well as money issues and did not have time to travel to Australia. When asked about his second visa, he said that he applied for that visa because he had been moving around a lot and he thought that he would get a visa. He had ‘googled’ online and saw that he could get refugee status in Australia, so he came to Australia.
When he got his second visa, he was living in Port Moresby. He agreed that he did not leave PNG until over three months after being granted that visa. He flew to Brisbane and he stayed for about a week until he moved to Townsville. He then went to [Town 3] where he stayed with friends. He told the Tribunal that his second visa did not have any ‘work’ condition with it, so he worked on some [workplaces 1] and got paid cash for that work. When he got enough cash together, he sent money back to his wife in PNG. He said that he wanted to get a good job to be able to send more money back home to PNG to help his wife and children.

He told the Tribunal that someone told him that there was a process where he could apply for a Protection visa and this would allow him to get a Bridging visa which would allow him to work and earn good money. He said that he even went into the [workplace 2] and tried to join the [workplace 2 employees], but was told that the [workplace] were only recruiting people with a permanent residence visa.
He said that before he departed PNG, he was living in Port Morseby with his wife and [children]. He was employed on a part-time basis by [Employer 1], which is a [company] and he worked with that company in [workplaces]. He had been employed with that company for only a month before he left PNG.
Before that, he had worked for [Employment agency]. This company [does a work task], and his only engagements with that company for work was on a part-time basis about three times a year during [the work task]. [The work task] would take about two to three weeks.
In regards to him living in Port Moresby, he said that he met his wife in about 2002 or 2003. She was living in Port Moresby and he had moved down from the Western Highlands Province to live with his uncle and play [sport]. He was about [Age] at that time. A couple of years later he married his wife and they continued to live in Port Moresby.
Sometimes, he went back to [Town 1], but that depended on the costs of the plane fare. He described that from the time that he arrived in Port Moresby in the early 2000s to when he left for Australia in 2023, he was mainly employed by various companies doing shutdown work in various [workplaces]. When looking at the applicant’s evidence in regard to his own employment, what is clear is that he did not have full-time employment and any work that he did get was on a sporadic basis at various [workplaces].
When asked for an explanation why he cannot go back to PNG, he told the Tribunal that it is his [children]. His concern was that if something happened to him, who was going to look after them financially. When asked why would something happened to him, he said that he had already got death threats from members of a neighbouring village tribe. When asked what were the death threats, he said “death threats”. When asked to explain what those threats were, he said that he had been at the [Town 1] Market in the beginning of 2023 and he was told to watch his back as they were watching him.
He then shifted focus in his evidence and said that he had no role in the 2017 election, and the only thing he did was to cast his vote. He claimed that the members of the neighbouring tribe thought that he had financially supported his cousin who was a candidate in that election. He named his cousin as [Mr J], who is a blood relative from his father’s side. [Mr J] now lives in Lae and runs his own [company].
The applicant claimed that during the electioneering period, two men from a neighbouring tribe were killed. Notwithstanding the applicant’s claims, he has not provided any evidence of any payback or any harm inflicted upon his cousin who was the political candidate, or to any other member of his own family.
When asked about any other threats towards him, he said that they had been other threats between 2017 and 2023. It is his belief that the neighbouring tribesmen were responsible for injuring him in Port Moresby in June 2023. When asked about the incident, he said that he did not know this person who attacked him. This person said nothing to him at all, and nor did this person make any threat or reference to the 2017 election. This incident is discussed in greater detail later in these Reasons.
In a handwritten statement of claim supplied by the applicant to the Department on 17 October 2023, he referenced that on the “last 2017 general elections, ([District] seat) we had big fighting in homes destroyed, couple of men were also gunned down on a bridge in my village”. He went on to say that candidates from other tribes blamed his village for supporting the candidates from neighbouring villages because one of those candidates was his cousin. According to the applicant’s statement of claim, the tribes and villages blamed supporters of his cousin for instigating the killings and wanted to get revenge. He then went on to say that he had received death threats and feared for his life.
When asked about his claims that he had been threatened in PNG, the applicant told the Tribunal that he first started receiving threats in the period of about the end of 2018 to sometime in the start of 2019. He described that he was having a few beers with his friends when he was told by his friends not to stay around too long because they had seen a car driving up and down. He claimed that his friends said that there was trouble coming, and later a person, who he described to the Tribunal as a person from the PNG Highlands, said to him “watch your back, we know where you live”.
He then told the Tribunal that the very next time he was threatened was sometime during 2021 or 2022 when he got about 15 phone calls. He said that the caller told him over the phone to watch his back, don’t be smart, we know where your kids go to school. He went on to say that the caller said that ‘they’ knew where he lived. He then went on to tell the Tribunal that in early 2023 he went to [Town 1] for his father’s funeral. It was during this visit to [Town 1] that he went to the markets and he was threatened by someone and again told to watch his back, and that these people knew where he lived. He claimed that he went to the [Town 1] police station and made a report to the police.
After he had lodged his review application with the Tribunal, on 11 April 2024 he provided the Tribunal with a short statement along with two screenshot images. In that statement, he referenced an incident which he said took place on 2 June 2023 at a bus stop in [Suburb 2], Port Moresby (‘bus stop incident’). He said he was threatened, and nearly killed with a knife. He said luckily, he raised his right arm to stop the knife injuring his neck. He was stabbed on the inside of his wrist. He went on to say that he nearly died from the loss of blood, and some good Samaritans put him in a cab and he was rushed to the nearest hospital. He then went on to say that after the incident he had a good talk with his wife and family, and “couple of weeks later I flew down to Brisbane to seek protection, as am the only breadwinner of the family”. In respect to the screenshot images he provided, one shows some scarring on the inside of his wrist, and the other image is an exchange of text messages between the applicant and his wife. The text messages do not relate to the incident just discussed, more so they relate to an allegation that their oldest child was on his way home from school when he followed by some people in a Land Cruiser.
Returning to the bus stop incident, at a later time he provided to the Tribunal a medical report form[21] dated 3 June 2023. In that form, it disclosed that the reason for his examination was:
Allegedly stabbed on his right wrist by some people. Sustained body injuries both laceration & traumatic. Incident occurred yesterday afternoon @ [Suburb 2] bus stop.
[21]Provided to the Tribunal on 13 August 2024.
The remarks / conclusion of the report were:
He was attacked/sustained injuries as a result. Laceration stitched up & continue medication @ home. Kindly assist him where possible.
The Tribunal’s observations of the medical report are that it appears to be a poor quality, with some of the wording blurred or obliterated, which gives the impression that the document has on many occasions been photocopied, or copied in some other way.
Furthermore, contained within the notes made by the treating medical physician was comments that the bus stop incident was a random attack perpetrated upon the applicant by an unknown assailant. It was not referenced in the report that he was attacked because of any reasons of him being associated with the 2017 elections when his cousin was a candidate, or that the incident was a form of payback for something which had occurred six years earlier.
Further observation of the medical report is the date of the incident. The report is dated 3 June 2023, and it outlined that the applicant was attacked at the bus stop the day before. In his statement where he described the bus stop incident, he said that he flew to Brisbane a couple weeks later to seek protection.
Although the Tribunal accepts that he did fly to Brisbane, it is not accepted that his trip took place a couple of weeks after the bus stop incident. More so, what transpired was that he had not been granted his second visa until 13 April 2023, which is well over a month after the incident occurred. His departure from PNG did not take place until [July] 2023, which is approximately three and a half months after he was granted his visa, and almost five months after he was allegedly attacked during the bus stop incident.
Although the Tribunal accepts that he received an injury to his wrist and that injury was caused by him being stabbed at a bus stop on or about 2 March 2023, the Tribunal does not accept that the attack was in any way involved a payback relating to the 2017 General Election as he has claimed.
In regard to the screenshot image of text messages, the Tribunal accepts that they are an exchange of text messages between the applicant and his wife where the applicant’s wife indicated that she had withdrawn their children from school and she had taken them back to a village.
The applicant told the Tribunal that after he had left PNG and travelled to Australia, he was told by his wife that his oldest son was coming home from school one afternoon and he was followed by a Land Cruiser, although the occupants of that vehicle never approached the applicant’s son. It also appears that no complaint was made to the police about this matter.
The Tribunal accepts that the exchange of text messages relates to the applicant’s claim that his oldest child was followed by people in a Land Cruiser as he walked home from school. There is no evidence before the Tribunal that his child was approached by anyone from that vehicle, or that any conversation took place between the applicant’s son and anyone in that vehicle which would validate that it was related directly to the claims for protection relied upon by the applicant. Therefore, the Tribunal attributes no weight to that allegation when reaching a determination in this matter.
The applicant claims that the threats that he had been receiving, along with his well-founded fear of him returning to PNG has a direct correlation to his cousin being a candidate in the 2017 election, and there was a misconception by members of another tribe that the applicant had financially supported his cousin.
Documents, statements and references presented by the applicant
As it has already been referenced in paragraphs 18, 21 and 27 of these Reasons, the applicant has provided a number of documents, statements and references. The references referred to in paragraph 18(e), (f), (g), (h), and (i) are work references relating to the applicant’s employment, and the educational certificates relate to his education and training in PNG. Although the Tribunal does accept those documents so far as them providing a work or character reference, no weight is placed upon them in regard to a determination of this matter.
The applicant relies upon a letter purportedly under the hand of Admin Sgt [C] from the [Town 2] Police Station. This statement was provided to the Department on 16 January 2024. The letter is dated 19 January 2023, and this person was not called by the applicant to give evidence at the Tribunal hearing.
The contents of the letter are that:
SUBJECT: ONGOING THREATS AND INTIMIDATION – [the applicant]
This letter serves to inform and confirmation on the above captioned subject for assistance where need be.
[The applicant], M/A is [District], in the Western Highlands Province. He is a victim of ongoing threats and intimidation. This has been ongoing for the past six (6) years.
The threats and intimidation arose from election results of the 2017 National General Election for the [District] Electorate Open Seat. Thus, tribesman of losing candidate causing the issue at hand.
Matter was reported that [Town 1] Police Station initially in 2017. Having moved to Port Moresby, it is highly likely that, the perpetrators will certainly induce physical violence, or possibly death on the victim.
Please assist him in this his endeavour in seeking safety and protection.
When careful consideration is applied to the contents of that letter, it does not make any reference to the death of any person as a result of any conflict within the Highland area such as was described by the applicant in his statement. Nor does any reference exist in the letter to the applicant’s cousin being a candidate during those elections, or that he (the applicant) had been threatened because it was perceived that he had financially backed his cousin in that election.
Noticeably, the letter suggests that the letter was to assist the applicant in his endeavours to seek safety and protection within Australia. The letter is dated 19 January 2023, which is well before the applicant was granted his Tourist visa, and also well before he travelled to Australia, and it is dated nine months before his application was lodged with the Department. Further to this, even after being granted his second visa on 3 April 2023, it took the applicant over three months before he departed PNG. Even when he got to Australia, he did not immediately apply for his Protection visa, instead he travelled to North Queensland where he found employment, and his application was only lodged nine days before his second visa expired; and only after he was told by his friends that to earn good money he should get a Bridging visa.
A further concern that the Tribunal has with this letter lies with the signature shown on the document. Although the name and rank of the purported author of the letter is typed at the bottom of the document, immediately above the signature line are three signatures, with each signature seemingly on top of each other.
The Tribunal is aware that the information provided within the DFAT Country Information Report is that document fraud occurs frequently in PNG, and it is very easy to obtain false documents.[22] The Tribunal is concerned about the credibility and the reliability of the information contained in this letter because it is dated 19 January 2023, which is before the applicant seemingly formed his intention to lodge an application for a Protection visa.
[22]DFAT Country Information Report, PNG, 6 September 2022, page 25, paragraph 5.23.
On 29 January 2024, the Department received a further document from the applicant. This document was a letter dated 29 January 2024 from Senior Sergeant [D], a PNG police officer. The letter does not in any way explain how this officer knows the applicant, or why he was providing the letter to the applicant. The letter goes on to refer to:
REF: QUIRE TO FOR REFUGE OR SHELTER OUTSIDE PNG
I, Senior Sergeant of Police Forensic Science Royal Papua New Guinea Constabulary in the national Capital of Port Moresby PNG. I made this quire regarding [the applicant], who said that he had received death threats and upon his request as a guarantee to leave the country because he said that he is not safe anymore to live here in Papua New Guinea.
He said he had been threatened by neighbouring tribes men within [District] and he went hiding for his safety since 2017 National General Election. I as a local Police officer in his Western Highlands Province and his [District] electorate have witnessed many deaths relating to PNG National General Election.
I, as a Law enforcer, upon his request, I guarantee him to take refuge and shelter in any other country or place he wish to.
When a careful assessment is made of the contents of that letter, the first noticeable point is that the letter is dated 29 January 2024. By this time, and according to his migration history, the applicant was already in Australia, yet the letter suggests that the applicant told the officer about him receiving death threats because of the reasons explored in the letter. The Tribunal is satisfies (and so finds) that there is no evidence of the applicant ever speaking to this officer, or that he had provided the officer any information about the 2017 election campaign.
The Tribunal is also satisfied that there is a striking similarity between that letter, and an earlier letter provided by the applicant to the Department on 17 October 2023. That earlier letter was undated and purportedly written also by a PNG police officer called [Mr B] from the [Town 1] Police Station. The contents of that letter are:
EASTERN END COMMAND
[TOWN 1] POLICE DEPARTMENT
[PO BOX]
[TOWN 1] WESTERN HIGHLANDS PROVINCE
PAPUA NEW GUINEA
TO WHOM IT MAY CONCERN
Dear Sir/Madam
REF: QUIRE TO LEAVE FOR REFUGE OR SHELTER OUTSIDE PNG
I [Mr B], R/Constable of Police here in [Town 1] Police Station of Western Highlands Province. I made this quire regarding [the applicant], he said he had received death threats and upon his request as a guarantee to leave the country, because he said he is not feeling safe anymore to live here in Papua New Guinea.
He said he had been threatened by neighbouring tribes within [District] and he went into hiding for his safety since 2017 general election. I as a Western Highlander and with the help of my local knowledge, I witnessed many deaths so far in [District] electorate relating general Election.
However, I as a law enforcer, upon on his request for guarantee, I guarantee for him to take refuge and shelter in any other country or place he wishes to.
Firstly, in regard to the Tribunal’s observations about the above letter, although it contained what appears to be the Royal PNG Constabulary Crest, the Tribunal is satisfied that the quality of the image indicates that it has been ‘cut-and-pasted’ from the internet or some other document onto the letter. Furthermore, the letterhead of this letter does not match the letterhead of the other Royal PNG Constabulary letters provided by the applicant. For example, those other letters provided the names of the police establishments such as ‘National Police Headquarters’ and ‘[Suburb 2] Police Station’. The Tribunal does not accept that [Town 1] has its own ‘Police Department’ as suggested by the letter.
As can be seen from the contents of the above letter, when comparing that letter to the letter purportedly from Senior Sergeant [D], the Tribunal is satisfied (and so finds) that although there is some very slight variations, both letters contain the exact wording, including the use of the word ‘quire’.
On 17 October 2023, the applicant also provided to the Department a hand written statutory declaration dated 24 March 2023 purportedly from [A] as well as a typed letter dated 23 March 2023 from the same person. It was declared in the statutory declaration that:
[The applicant]’s his life has been threatened by supporters of other candidates, who have contested the [District] Elections, has one of his cousins contested on. There are relevant deaths already. I as Village Court Magistrate authorise him to take refuge in any other country or place he wishes (emphasis added).
In the typed statement of [A], the wording used was:
I [A] [position and address provided] would like to make a quire regarding [the applicant] who has received death threats, from neighbouring to tribes in [Location] in [District] in WHP. He has been fearing for his safety, and is living in hiding since the 2017 General Election, as one of his cousins contested the election and there was several deaths already. I as a village court magistrate and peace officer, would guarantee for him to take refuge and shelter in any other country or place he wishes to (emphasis added).

In regard to the hand written statutory declaration, the Tribunal’s attention is drawn to the comment ‘authorise him to take refuge in any other country or place he wishes’ (emphasis added) which is the same wording, or the same wording with a very slight variation, that was used in the letters purportedly from the police officers, [Mr D] and [Mr B]. In that regard the Tribunal is concerned about the authenticity of the statutory declaration.
Turning to the typed statement purportedly by [A], the very first thing noticeable about the document was the signature. That signature differs greatly from the signature shown on the hand written statutory declaration from the same person. Secondly, immediately under the signature line is the following name and title:
_________________
[AA] village
Court Magistrate and Peace Officer
Albeit that the spelling of this person’s Christian name is similar, it is spelt differently to the Christian name on the statutory declaration. The Tribunal is satisfied that this error alone would not ordinarily cause concerns as to the authenticity of the document, however when that misspelt name along with a different signature are added together, the Tribunal is not satisfied as to the authenticity of the document. A further feature which provides the Tribunal with those concerns is the phrase, guarantee for him to take refuge and shelter in any other country or place he wishes to (emphasis added). This is the same phrase used in other documents purportedly written by different people, namely the police officers [Mr D] and [Mr B].
Already referenced in these reasons is the comment in regard to the medical report form received from the applicant on 13 August 2024. On that same date, he provided three other documents which were the typed letter dated 12 August 2024 purportedly from Constable [E] from the [Suburb 2] Police Station; a letter from the [Government office] dated 8 August 2024; a character reference dated 12 August 2024 from [Pastor H] from the [Church]; and a letter dated 29 July 2024 from [Ms I], who is the applicant’s wife.
In regard to the letter from Constable [E] from the [Suburb 2] Police Station, she said that the applicant and his family had been receiving death threats, with those threats being related to the 2017 general election, and those threats caused the applicant to fear for his safety and he left PNG to seek refuge in Australia. She went on to say that the threats came from tribesman in the Western Highlands Province in [District]. The applicant told the Tribunal that his wife obtained this letter from the police officer, and although there is a supposed police report number mentioned in the letter, no copy of that report is attached to the letter. It is noticed by the Tribunal that part of the wording used in that letter is very similar to the wording used in the letter from the [Government office]. That is, within the police officers letter, the phrase used was “left the country to seek Refuge on Humanitarian Grounds in Australia since Last year 2023, around June or July” (emphasis added). The applicant told the Tribunal that he has never met this police officer, his wife had arranged the letter from Constable [E]. He indicated to the Tribunal that he did not wish to use this officer as a witness to these proceedings.
In respect to the letter from [F] and [G], both of whom are from the [Government office], it is suggested in the letter that the applicant and his family had received death threats and the applicant had gone into hiding. The applicant told the Tribunal that his wife had obtained this letter on his behalf. When a careful assessment is made of the contents of the letter, and it was compared to the letter from Constable [E], a very similar phrase is evident in the letter. That is, “left Papua New Guinea seek refuge on Humanitarian Grounds in Australia last year in July or June 2023” (emphasis added).
The applicant told the Tribunal that he has never met [F] and [G] and the letter had been arranged by his wife. Neither [F] or [G] were relied upon by the applicant as witnesses in the hearing, and given the similarity between those identified phrases, the Tribunal does not accept the authenticity of those letters and is satisfied (and so finds) that absolutely no weight should be given to those letters so far as there being any credibility attached to them.
In respect to the character reference offered by Pastor [H], it was said in that reference that the applicant has proven to be a committed and capable person who listens carefully before carrying out given responsibilities, and he had been a faithful and active member of the church and he had faithfully supported the local church administration. The reference went on to say that the applicant had a respectful attitude towards people, and he was held in great trust and was highly respected within the church. In observing that the letter was dated 12 August 2024, when the Tribunal asked the applicant whether he had met Pastor [H], the applicant told the Tribunal that he had never met this person and it was his wife who had obtained the reference.
In that regard, the Tribunal is satisfied that even if the authenticity of this document was accepted, no weight should be attributed to it so far as a determination of this matter because the pastor could not have effectively provided a character reference for the applicant because they were not known to each other.
The last document provided by the applicant was a letter from his wife. The applicant did not rely upon his wife as a witness in the hearing. Her letter provides information similar to what the applicant said about the threats towards him relating to the 2017 General Elections. Noticeably, she makes reference in her letter to:
Due to threats and fearing for our safety we have moved and is currently now in my province as we have not settle well in the city in regards to my husband’s incident last June in Port Moresby. He was assaulted severely beaten and his wrist slashed in the event nearly lost his life. Thankfully for some good Samaritans they rushed my husband to the nearby clinic.
In the applicant’s letter received by the Tribunal on 11 April 2024, his comments about the bus stop incident were that it happened on the afternoon of 2 June 2023 and that luckily good Samaritans put him in a cab and rushed him to the nearest hospital.
When carefully assessing both of those letters, in particular the information contained within the letter from the applicant’s wife, the Tribunal is inclined to accept that the applicant did receive an injury in June 2023 which required medical intervention. However, as it has already been identified in these Reasons, the Tribunal does not accept that the evidence shows that the motivation behind him being assaulted related in any way to the 2017 General Election or indeed related to any payback by neighbouring tribe members.
When a careful assessment is undertaken of all the documents relied upon by the applicant, in particular the references made within these Reasons of the Tribunal’s concerns about those letters, the Tribunal is satisfied that there are similarities contained across a number of documents. The applicant was asked by the Tribunal if he could explain the existence of those similarities and why those similarities in the wording had been used by different people on different dates. He told the Tribunal that the police had a standard form, or more so a standard terminology which was used in situations where people are seeking refugee status in another country, and that terminology is used in those statements. The Tribunal does not accept that evidence and is satisfied (and so finds) that there is no evidence before the Tribunal to validate that response.
When careful examination is undertaken of the terminology used, as well as the same wording and phrasing being used across those documents, this satisfies the Tribunal that the documentary evidence has been contrived for the purpose of enhancing the applicant’s refugee status in Australia and the Tribunal attributes no weight to those documents with respect to the determination of this matter.
DELAY IN LODGING APPLICATION
When considering the applicant’s delay in lodging his application, the Tribunal is aware that 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, and the significance of any delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[23]
[23]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346: Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998.
The applicant claims that because his cousin was a candidate in the 2017 General Elections for PNG, there was a perception by members of the neighbouring tribe that he had financially supported his cousin in his bid for election. He also claimed that during the election campaign, two men from the neighbouring tribe had lost their life, and because of that, the applicant has been threatened with ‘payback’, and he has also been harmed. Those threats were made to him during the period of the end of 2018 through to some time at the start of 2019, and again during the period of sometime during 2021 or 2022. He also gave evidence that when he went to [Town 1] in early 2023 for his father’s funeral, he was at the [Town 1] markets and was threatened by a person from the Highlands and told that they knew where he lived and he was to watch his back. He also told the Tribunal that he was at a bus stop in Port Moresby on 2 June 2023 when he was again threatened, and on this occasion he was stabbed with a knife on the inside of his right wrist, and this injury required medical treatment. Of all the allegations the applicant made with regard to the threats, the most recent incident at the bus stop appears to be the only time when he was physically harmed. Notwithstanding that, the Tribunal notes that it was not until eight weeks later that he departed PNG and travelled to Australia.
The Tribunal was aware of certain information relating to the applicant’s migration history within the Department’s file, and because he was appearing before the Tribunal by way of an invitation,[24] his migration history was particularised to him subject to the provisions of section 424AA of the Act.
[24]Migration Act 1958 (Cth), s 425.
That migration history showed that he was granted two Tourist visas. The first visa was granted on 4 February 2020, which expired three years later on 4 February 2023. He did not travel to Australia on that visa. As it has already been explained in these Reasons, when he was asked why he did not travel to Australia when he was granted the first visa, he said that he had work and family commitments, as well as money issues and did not have time to travel to Australia.
The second visa was granted to him on 3 April 2023, and it was not until almost four months later that he travelled to Australia, arriving on 26 July 2023. When he was asked for his reason for taking so long to depart PNG after being granted his second visa, he did not give a solid answer, but instead said that he applied for that visa because he had been moving around a lot and he thought that he would get a visa. As it has already been identified above, his claim is that he was targeted at the bus stop in Port Moresby and stabbed with a knife on 2 June 2023. Notwithstanding his claimed well-founded fear of ‘payback’ and that the attack was connected to the 2017 General Elections, it took him almost another eight weeks before he departed PNG for Australia.
The Tribunal is satisfied (and so finds) that from his evidence at the hearing, he did not immediately apply for a Protection visa upon his arrival in Australia. The Tribunal is further satisfied that his main focus when he arrived in Australia was to travel to North Queensland to connect with friends, and then find employment. It was only after he was told by his friends that if he wanted to earn good money, then he should apply for a Bridging visa. It was then that his application was lodged with the Department. His application was not lodged until 17 October 2023, which was almost three months after his arrival in Australia.
In respect to any consideration given by the Tribunal about that delay, guidance is found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution. Therefore, when careful consideration is given to the delay of almost three months between the applicant’s arrival in Australia to when he made his application for a Protection visa, the Tribunal is satisfied (and so finds) that under the circumstances relating to the features of this case, that delay is a significant delay.
When careful examination is undertaken of the applicant’s claims for protection, and consideration is given to assessing the genuineness or depth of his fear of persecution should he return to PNG against all the known facts of this matter, including the significant delay, the Tribunal is satisfied (and so finds) that the significant delay can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[25]
[25] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
CONCLUSION AND REFUGEE FINDINGS
The very nature of a review hearing is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available to it, and to give a fresh consideration to all of that material, information and evidence and to make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Act provides that when the Tribunal is considering this matter, although it is not bound by technicalities, legal forms or rules of evidence; it must act according to substantial justice and the merits of the applicant’s case.[26]
[26]Migration Act 1958 (Cth), s 420.
By its own character, a review hearing is also inquisitorial in nature, and although the Tribunal can seek out evidence it considers is required in order to reach a determination in this matter, the Tribunal is under no obligation to seek out evidence to support the applicant’s claims, even though it is entitled to do so.[27]
[27]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].
There is no requirement placed upon the Tribunal to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. There is no obligation or responsibility on the Tribunal’s part to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims,[28] nor is it required to accept uncritically any of the allegations he makes.[29]
[28]Migration Act 1958 (Cth), s 5AAA.
[29]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.
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of their race, religion, nationality, membership of a particular social group or political opinion.
The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to PNG, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm on the grounds of him being threatened by a system of payback arising from a tribal dispute during the 2017 General Elections when two men were killed in his village.
The applicant told the Tribunal of the occasions where he encountered what he described as tribesman from the Highlands, and he was told on those occasions that they knew where he lived and that he should watch his back. On none of those occasions does he say that he was harmed in any way, or that there were threats made to harm members of his family. Even when closely examining his evidence in regard to the bus stop incident, he did not say that there was any threat made to him, or that this incident was in any way connected to the 2017 General Election.
The Tribunal is satisfied (and so finds) that there is no evidence provided by the applicant of any retaliation towards him or his family, or harm being carried out against either him or his family which is connected with his cousin being a political candidate in 2017, or that any threat was made to any member of his family, including his cousin. The Tribunal is also satisfied that although the applicant claims that these people said to him that they knew where he lived, there is no evidence, nor does he claim, that anyone carried out that threat and visited his residence.
Therefore, after careful consideration of all the material available, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as he does not fear that if he returns to PNG he will be persecuted for reasons prescribed in section 5J(1)(a) of the Act. The Tribunal is not satisfied that he is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[30] the Tribunal has given careful consideration to the alternative criterion,[31] and an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to PNG, there is a real risk that he will suffer significant harm as it is defined in the Act.[32]
[30]Migration Act 1958 (Cth), s 36(2)(a).
[31]Migration Act 1958 (Cth), s 36(2)(aa).
[32]Migration Act 1958 (Cth), s 36(2A).
Significant harm is defined within section 36(2A) of the Act as the person will be arbitrarily deprived of his or her life; the death penalty will be carried out on the person; the person will be subjected to torture; the person will be subjected to cruel or inhuman treatment or punishment; or the person will be subjected to degrading treatment or punishment.

As it has already been identified in these Reasons, the applicant’s claims revolve around the issue of ‘payback’ arising out of him being threatened about a tribal dispute during the 2017 General Elections when two men were killed in his village.
Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he would suffer significant harm if he returned to PNG. The Courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[33]
[33]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[34] The question of ‘real chance’ is the test to be applied on an application for a Protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[35] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[36]
[34]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.
[35]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.
[36]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
When carefully assessing the claims made by the applicant, the Tribunal is not satisfied the harm the applicant fears could constitute either of the forms of significant harm as defined in section 36(2A)(a)–(c) of the Act. Earlier in these Reasons, the Tribunal accepted that he had been harmed at the bus stop in Port Moresby on 2 June 2023, however found no evidence to validate his claims that he, or any member of his family, were subjected to payback for the killing of two men from a neighbouring tribe during the 2017 General Elections. Even if the Tribunal had accepted that during his encounters with the Highlanders on the occasions he described, any threat of knowing where he lived and he should watch his back were never followed through with. An additional point which satisfies the Tribunal that there is not a well-founded fear or a real risk that he will suffer significant harm arises from his significant delay in departing PNG after being granted his second Tourist visa on 13 April 2024.
The Tribunal has also carefully considered whether the harm the applicant claimed he feared could constitutes either of the other forms of significant harm in section 36(2A)(d)-(e) of the Act, which is ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of these forms of significant harm are defined in section 5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional.
The ordinary meaning of intention implies a plan or aim and the High Court found that intention requires a perpetrator to have an ‘actual, subjective, state of mind’.[37] When carefully considering the applicant’s evidence that despite being told that ‘they’ knew where he lived, and that he should watch his back, the only concerning incident took place at the bus stop in Port Moresby on 2 June 2023. The Tribunal has already discussed its findings that this incident is in no way related to any payback arising from his cousin being a political candidate in 2017, or the death of the two tribesman in his village. Therefore, the Tribunal is not satisfied that there is any actual perpetrator that would have an actual, subjective, state of mind to inflict ‘payback’ and harm the applicant.
[37]SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34, [27].
After having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to PNG now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, or he will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will he be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in PNG. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act, and therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to PNG, he will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act. Having concluded that he does not meet the refugee criterion, the Tribunal has considered the alternative criterion and is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) of the Act based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Wayne Pennell
Senior Member

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

[2024] AATA 4397

10 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction