1920272 (Refugee) [2023] AATA 4568 (8 November 2023)

Last Updated: 20 February 2024

1920272 (Refugee) [2023] AATA 4568 (8 November 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Ms Sandra Magaret Tempest

CASE NUMBER: 1920272

COUNTRY OF REFERENCE: Papua New Guinea

MEMBER: Wayne Pennell

DATE: 8 November 2023

PLACE OF DECISION: Brisbane

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

Statement made on 08 November 2023 at 2:20pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – initial claim of fear of harm from step-mother – verbal and physical abuse from young age, and accusation of sorcery – significant changes to claims at and after departmental interview – limited study, work and financial opportunities, and possibility of forced marriage – single woman without family support – delay in applying for protection – applied on day visitor visa due to cease – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Re Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
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

1. 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]
2. The applicant claims to be a citizen of Papua New Guinea (‘PNG’) and applied for a protection visa.^[2] When assessing the application, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there was a real risk she would suffer significant harm. Therefore, the delegate refused to grant the visa^[3] on the basis that she was not a refugee as defined by the Act^[4] and she was not a person in respect of whom Australia has protection obligations.^[5]
3. The applicant filed an application with the Tribunal for a review of the delegate’s decision.^[6] At a subsequent time, the Tribunal sent a letter to the applicant and advised that it had considered all the material relating to her application but was unable to make a favourable decision on that information alone. She was invited to attend an in-person review hearing scheduled for 7 November 2023. The applicant accepted that invitation and attended the scheduled hearing with her representative.

CRITERIA FOR A PROTECTION VISA

4. The measures for a protection visa are set out in the Act^[7] and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.^[8] That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
5. The Act provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.^[9]
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.^[10] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.^[11]
7. The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.^[12] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act, which are extracted in the attachment to this decision.^[13]
8. If a person is found not to meet the refugee criterion in the Act,^[14] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).^[15] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, which are extracted in the attachment to this decision.^[16]
9. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.^[17]
10. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.^[18]

COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

11. The applicant claims to be a citizen of PNG and provided a copy of her passport to authenticate this claim.^[19] The Tribunal accepts her identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.^[20]
12. 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 she is not excluded from Australia’s protection obligations.^[21]

MANDATORY CONSIDERATIONS

13. In accordance with Ministerial Direction No. 84 made under the Act,^[22] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF THE APPLICANT’S CASE

14. The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there exists a real risk that she will suffer significant harm or there is a real chance she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.^[23]
15. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because she claims that she 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.
25. The Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of her claims, or to establish or assist in establishing her claims.^[24] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.^[25]

APPLICANT’S BACKGROUND AND CLAIMS

Background

17. On 8 April 2016, the applicant was granted a visitor (subclass 600) visa. That visa was due to cease on 2 August 2016. The applicant arrived in Australia subject to the conditions of that visitor visa [in] May 2016, and on the same day that her visitor visa was due to expire, she lodged with the Department her application for a protection visa.
18. She was born in the [Town] area of PNG and lived there with her parents until just prior to her arrival in Australia. She has [siblings who] still live in PNG. She described that she is of [Specified] ethnicity and of Lutheran faith.

Claims and statutory declarations

19. When lodging her application for a protection visa with the Department on 2 August 2016, the applicant made a number of claims within that application. Extracted below are the comments she made. Initially, she explained that the reasons she left PNG were because:

My father told me that that my mother died when I was [age] years old. All of my memories are of my step-mother. She has always treated me very badly. She was verbally and physically abusive to me and used to treat me like a slave. I was the only one in the house who was made to do the housework and I had to look after the whole house. If I didn't have everything done in the way she wanted, she would throw things at me like knives and stones. I had to run away from her to escape from being killed. I was not able to finish school because of her treatment of me and because she would come to the school and hassle me. She just wanted me to be at home and do housework. I had to do whatever she told me to do. I had no freedom at all. My father tried to protect me but she was rude and violent to him too.

In February 2016, a guy died in our village and my step-mother spread a rumor (sic) that me and two other women had killed this man by sorcery. Because of this, the villagers were looking for us and wanted to kill us. People who are accused of sorcery in PNG are burnt alive. My father was very scared when he heard these accusations so he sent me to his brother in Port Moresby and made arrangements for me to get a visa to Australia. I don't know how he did this but he was very scared for me. Once I got my visa, I came to Australia.^[26]

20. In explaining what she thought would happen to her if she returned to PNG, she said that it was not safe for her in PNG. She said that the villagers believe that she killed someone with sorcery so they will search everywhere for her and will kill her if she is found.
21. When asked in the application to explain the type of harm she experienced, she outlined that she had experienced harm all of her life from her stepmother who was verbally and physically abusive towards the applicant. Her hatred of the applicant led to her stepmother accusing her of killing someone by sorcery in February 2016 and now the villagers are searching for the applicant to kill her.
22. She was also asked in the application to explain whether she sought help within PNG after she experienced the harm, and if not, give the reasons why. Her explanation was that the police cannot protect her from the villagers or her stepmother. In the past, the applicant had seen other cases where the police did not protect people who have been accused of sorcery.
23. In regard to relocating within PNG for her own protection, the applicant explained that her father got her to his brother's house in Port Moresby, but it was still close to her home area so it was not safe for her to stay there for long.
24. The applicant went on to explain in her application that she considered that she would be harmed or mistreated if she returned to PNG, and she claimed that because she has been accused of killing someone by sorcery, she would be killed by the villagers if she returned to PNG.
25. When discussing whether she thought that she could be protected by the PNG authorities, she claimed that the police in PNG are ineffective and would not be able to protect her from the villagers or her stepmother. There are not enough police in the village areas in PNG and there is corruption in the police force, and she has seen in the past that the police do not protect people who have been accused of sorcery.
26. In conclusion, she was asked why she was unable to relocate within PNG for her own protection. Her response was that she does not have any place to live in PNG where she will be safe. Her stepmother and people from her village would be able to find her no matter where she went within PNG.
27. At a later time,^[27] the applicant signed a statutory declaration (‘first statutory declaration’). For accuracy and completeness, the contents of that statutory declaration are reproduced as follows:
    1. I have no income and no savings.

2. I do not have any bank accounts either in Australia or overseas.

3. I have never worked in Australia or Papua New Guinea (PNG).

4. I have been told by my Red Cross case worker that there was information in my Visitor visa application which stated that I worked as [an Occupation 1] while I was in PNG. This is not correct. I lived with my father and my step mother in my [village] in the Western Highlands Province until February 2016 when I was forced to leave in fear of my life when my step-mother accused me of sorcery. I went and stayed with my uncle in Port Moresby after this until I came to Australia in May 2016. I helped with subsistence farming while I was in the village but I never had any paid employment in my village or in Port Moresby.

5. After I was forced to flee my village in February 2016, my father and my friend helped me to apply for a visa to leave the country. My friend found an [agent] to do the application for me and my father gave me the money to pay for the agent. I gave the money to my friend to give to the agent as she knew him and I didn't. I did not have any direct contact with the agent. My friend brought the forms to me to sign but I didn't not read the forms and do not know what information was written in the forms. This process cost around 2000 kina.

6. I am being supported by the Red Cross at present. They have placed me in housing and they are providing me with shopping vouchers and Myki cards.

7. I lost my phone after I arrived in Australia so I have no contact with my family in PNG. Even if I were in contact with my father, he would be unable to help me because the issues I have are with his wife who is my step-mother.

8. I have no other means of support.
28. Outlined in the contents of that statutory declaration was the applicant declaring that her stepmother was accusing her of sorcery, and she was forced to flee her village. It is noted also that the applicant signed that statutory declaration acknowledging that she understood that it was an offence to make a false statement.
29. Subsequent to that first statutory declaration, on 15 September 2017 the applicant made another statutory declaration in which she outlined some detailed and specific reasons why she sought a protection visa (‘second statutory declaration’). That statutory declaration was signed by the applicant and she again acknowledged that she believed the statements she made in the statutory declaration were true in every particular, and by signing that document she understood that if she intentionally made a false statement in a statutory declaration, she was guilty of an offence under the Statutory Declarations Act 1959.
30. For completeness, the contents and the statements she made in that second statutory declaration are reproduced as follows:
    1. I am a [Age] year old citizen of Papua New Guinea. I am of [Specified] ethnicity and Lutheran faith. I write this statement in support of my application for a Protection visa lodged on 1 August 2016. I am currently living at [Address]. I fear that if I am returned to Papua New Guinea I will suffer serious harm at the hands of my step-mother and Papua New Guinean society, due to my imputed status as a sorceress. I also fear harm as a young woman without male protection or family support.

Family and background

2. I was born on [Date] in [Village], [Town], Papua New Guinea. I grew up there with my parents. My mother died when I was [age] years old. My father was [an Occupation 2] in [Town]. I attended school up until grade eight in [Village] and left school around [Year]. My step-mother and father still live in [Village] with my [half-sisters].

3. My step-mother met my father around 1995. I believe they got married around 1996. For as long as I remember my step-mother was abusive towards me. Even when I was four years old she would expect me to do chores around the house. She has been cruel to me for as long as I can remember.

Abuse at the hands of my step-mother

4. My father told me that my mother died when I was [age] years old. All of my memories are of my step-mother. She has always treated me very badly. She was verbally and physically abusive to me and used to treat me like a slave. I was the only one in the house who was made to do the housework and I had to look after the whole house. She was much kinder to my other [sisters], and would expect me to serve them. If I didn't have everything done in the way she wanted, she would throw things at me like knives and stones.

5. On one occasion she threw a knife at my [body]. I still have a prominent scar there. I had to use antibiotics and treat myself, because I was scared that if I went to a doctor my step-mother would be even more abusive towards me once she discovered I had told someone what happened.

6. When I was with my friends at the market, she would come find me and hit me in front of my friends. She would be angry at me for leaving the house, and would beat me and tell me that I should be at home doing housework.

7. She was also verbally abusive towards me. She would often berate me for not doing housework, and would hit me if I was doing homework instead of helping out around the house. She would call me a bastard, and tell me that I was useless.

8. I had to run away from her to escape from being killed on many occasions. I was not able to finish school because of her treatment of me and because she would come to the school and hassle me. I was forced to drop out of school after year eight. My step-mother just wanted me to be at home and do housework. I had to do whatever she told me to do. I had no freedom at all. My father tried to protect me but she was rude and violent to him too. If he defended me, she would either ignore him, or fight with him. I believe that he was scared of her as well, and sometime she would hit him as well. Even though he tried to stand up for me, he was unable to protect me from her.

9. In 2015 my step-mother wanted me to marry a man in our village, so that I would move out of our family house. My father did not wanted me to get married, but was overpowered by my step mother's wishes. I did not want to marry the man, and I refused. Because of this she was very angry at me, and made up the rumour that I was a sorceress. She told everybody in the village that I was a sorceress. She pretended it was not her that told everyone, and she came to me and acted as if she had heard the rumour from someone else. However some of my good friends in the village told me that they had overheard her telling other members of the community that I was a sorceress.

10. In February 2016, a man died in our village and my step-mother spread a rumor that me and two other women, [my friends], had killed this man by sorcery. She included my friends in the accusation because we spent a lot of time together, and she claimed that we were a group of sorceresses. Because of this, the villagers were looking for us and wanted to kill us. People who are accused of sorcery in Papua New Guinea are burnt alive. The targeting of persons believed to be involved in sorcery in Papua New Guinea is well known and just about everyone believes in it. My father was very scared when he heard these accusations, so he sent me to his brother in Port Moresby and provided me with' money so that I could get a visa to Australia.

Travel to Australia

11. My father provided me with some money to help me get away from Papua New Guinea when I was living in Port Moresby. I stayed in Port Morseby for around three weeks before travelling to Australia. I was constantly terrified that someone might find me, and identify me as a sorceress. I couldn't stay in Port Morseby, as anyone from my village could easily travel there and locate me. I had to leave Papua New Guinea in order to be safe, and so a friend helped me to organize my visa to Australia.

12. I arrived in Australia on a 3 month visitor visa [in] May 2016. I have since applied for a Protection visa on 1 August 2016. I was granted a Bridging Visa A (class WA) on 8 August 2016.

13. When I first arrived in Australia I stayed with a family friend of my father in Brisbane and [City]. She has now returned to Papua New Guinea.

14. Since arriving in Australia I have been living [Suburb] and have been unable to find any work. It has been isolating living in a country where I know nobody, but I still feel much safer than I would in Papua New Guinea, where I fear for my life.

Fears on return

15. It is not safe for me to return to Papua New Guinea. The villagers believe that I killed someone with sorcery, so they will search for me everywhere and will kill me when they find me. As I have been accused of killing someone by sorcery, I believe I will be killed by the villagers if I return to Papua New Guinea.

16. I have experienced harm all of my life from my step-mother who is verbally and physically abusive to me. Her hatred of me led to her accusing me of killing someone by sorcery in February 2016, and because of this the villagers are searching for me to kill me. I have witnessed firsthand, a woman being burned alive because she was accused of being a sorceress.

17. I also fear that I will be harmed as a woman without male protection or family support. I do not have any older brothers who could protect me, and my father has been unable to protect me. As a woman living on her own, I will be vulnerable to harm by other men. It is common for unprotected young women in Papua New Guinea to be raped if they do not have male protection. If I am forced to go back I will not have anywhere to live and I will not be able to get a job. There are no services available for women fleeing domestic violence or who have been accused of sorcery. I fear that I will be harmed by men anywhere I go.

18. My father was able to assist me to travel to his brother's house in Port Moresby, but it is still close to my home area so it was not safe for me to stay there for long. Villagers could easily travel to Port Moresby and locate me, and it is only [number] minutes away from my home village. There is nowhere in Papua New Guinea where I would be safe. Violence and sexual abuse against women occurs everywhere.

19. The police in Papua New Guinea do not help women in situations like mine. The law is not strong for women and there is no protection for women fleeing domestic violence. The police in Papua New Guinea are ineffective and will not be able to protect me from the villagers or my step-mother. There are not enough police in the village areas in Papua New Guinea and there is corruption in the police force. I have seen in the past that the police do not protect people who have been accused of sorcery.

20. I believe that the government of Papua New Guinea has recently introduced the death penalty for persons convicted of sorcery related killings, however it is important to realise that this is just the government trying to look like they are addressing the issue. It all looks very nice on paper but it doesn't mean anything if you don't have the police to catch the people or judges who are willing to convict someone in those circumstances.

21. I do not have any place to live in Papua New Guinea where I will be safe. My stepmother and people from my village will be able to find me no matter where I go. It is common for villagers to report sightings of someone who is suspected as a sorceress, and the villagers could find me anywhere throughout Papua New Guinea.

22. For these reasons I seek protection in Australia.
31. Subsequently, the applicant was invited by the delegate to attend an interview in respect to her application.^[28] That interview was scheduled to occur on 11 March 2019. During that interview, the department put to her a number of known facts about her family, and it was disclosed by the applicant that her mother was not deceased, she had a good relationship with her mother and she did not have a stepmother. However, she maintained her claim in respect to being accused of sorcery. She said that her two best friends spread the rumour within her village about the applicant being a sorceress.
32. Subsequent to her interview with the delegate, the applicant provided to the Department another statutory declaration (‘third statutory declaration’). In that statutory declaration, she again signed the document acknowledging that she understood that it was an offence to make a false statement.
33. For accuracy as to what was in that statutory declaration, the contents have been reproduced as follows:
    1. I am a [Age] year old citizen of Papua New Guinea. I am of [Specified] ethnicity and Lutheran faith. I write this statement in response to matters arising from my Protection visa interview held on 12 March 2019 in Brisbane. I have provided false information in relation to my Protection visa application and I wish to now provide a true account of why I came to Australia and what I fear returning to Papua New Guinea (PNG).

Family and background

2. I was born on [Date] in [Village], [Town], Papua New Guinea. When I was young I moved to [Location], [Town], and lived in there with [my parents]. I have two biological sisters called [Ms A] and [Ms B]. [Ms A] is [Age] years old and [Ms B] is [Age] years old.

3. My father is [an Occupation 3] at [Employer 1] in [Town] and my mother is a homemaker.

4. I attended [Location] Primary School up until grade 10.

5. Life was difficult in PNG. I left because there are no opportunities for me there. I tried many times to go further with my studies and to find a job but I could not. My father also tried really hard, even paying people to employ me, but I could not find work. I tried for almost a year to find a job but I wasn't able to and I was worried I was not going to be able to support myself. I was becoming a financial burden on my father.

6. I begged my father to help me leave PNG. He did everything in terms of arranging my travel to Australia, including arranging my visa.

Moving to Australia

1. When I first arrived in Australia I stayed with a family friend of my father in Brisbane and [City]. Her name is [Ms C]. I forgot her last name. She has now returned to Papua New Guinea.

2. When I arrived in Australia, [Ms C], told me about Red Cross. I went to Red Cross who found accommodation for me when I ran out of money. Red Cross referred me to Refugee Legal.

3. At the interview, the case officer suggested a woman who's daughter is called [Ms D] is helping people from PNG come to Australia and seek asylum. I met [Ms D] at a [church] in Melbourne. She never gave me any advice about my Protection visa application or my claims and I do not know why the Department believes her mother is helping people in this way. I do not know her mother and I was not helped by her mother. It may be that someone is spreading rumors about her.

4. I am friends with her children, including her [son], and used to see them in Melbourne.

5. Since moving to Brisbane, I have not been back to Melbourne.

6. I currently work at [Employer 2] as [an Occupation 3]. I work casually. I hope to get permanent work there. Before this I worked at a [workplace] in [Town], Queensland. I moved to Brisbane because I could not find work in Melbourne.

7. I have sent money to my parents on a few occasions since coming to Australia. Once, a woman from PNG needed my help to send money to her [brother], but she couldn't because she didn't have ID. I helped her transfer money to this person.

Fears on return

8. If I am returned to PNG, I will not have any opportunities to find work or further schooling. A lot of graduates are unemployed. I tried to find work but wasn't able to.

9. I have family in PNG but they cannot financially support me. If I go back, my father will force me to get married. I do not want to get married.

10. I see many young unemployed people on the streets, taking drugs, because they cannot find work.

11. As a young woman, I would not be safe. If I was out in the streets, trying to find money, or sell things on the streets, I fear drug gangs kidnapping or mugging me or knifing me. This is common in PNG and appears often on the news and social media.

12. For these reasons I seek protection in Australia.
34. The delegate later made a decision to refuse the applicant’s application for a protection visa, and the applicant then filed an application with the Tribunal to review the delegate’s decision.

Review hearing

35. The applicant accepted the Tribunal’s invitation to attend an in-person review hearing. In the period leading up to that hearing, she did not provide the Tribunal with any evidence to support the claims that she had made.
36. When the hearing commenced, the Tribunal discussed with her the claims she made in her original application relating to the suggestion that her stepmother spread a rumour that the applicant and two other women had killed a man by sorcery. Contrary to her latest statutory declaration, the applicant told the Tribunal that this claim was true and she relied upon it.
37. The Tribunal is aware that in her latest statutory declaration, the applicant deposed that she was not truthful when she made her application. She had provided false information in relation to her protection visa application, and she outlined what she described the current fears she held with respect to returning to PNG. Those new claims focused on, amongst other things, the applicant being economically disadvantaged because of the lack of employment and her relatively poor education.
38. The Tribunal discussed with her the claims as outlined in her application which were read out to her.^[29] She was asked if everything in those claims were correct, and she told the Tribunal that the only thing that was correct in those claims was the part about sorcery. She said that she still wished to rely upon the claim that she was accused of sorcery. That evidence is contrary to her third statutory declaration.
39. She also said that when she left her village because of the rumours about sorcery, she went to Port Moresby and stayed with her uncle. She told the Tribunal that she did not leave her uncle’s house for the three months that she was in Port Morseby. When challenged on the accuracy of that statement, she then said that she did leave the house with her uncle when he drove his car to the shop, but she did not get out of the car because she feared that people from her village would recognise her. The Tribunal does not accept that claim because she had earlier told the Tribunal in the review hearing that she went to an agent in Port Morseby and obtained the application for a visitor visa.
40. When asked about the circumstances as to why she made her application and whether it was her own idea, she said that prior to leaving PNG, she discussed her trip to Australia with some friends in Port Moresby. She claimed that her friends told her that when the visitor visa was running out, she should apply for a protection visa. She also said that her friends gave her “the basics” of what claims to make regarding being accused of sorcery.
41. Apart from identifying to her that her evidence about not leaving her uncle’s house in the three months she was in Port Morseby is contrary to her evidence that she went to an agent and got an application for a visa, the Tribunal also said that her claims about being accused of being a sorceress was also contrary to her third statutory declaration. To allow the applicant an opportunity to be appraised of the contents of her three statutory declarations containing the comments about sorcery, the Tribunal provided her with copies of those documents and she was given time to read them.
42. When the hearing resumed, the applicant then told the Tribunal that her stepmother would harm her if she returned to PNG, and this was because of the rumours spread by her stepmother about the applicant being a sorceress.
43. When asked about all the other claims that she made about her stepmother assaulting and abusing her, the applicant said that everything she said about the harm her stepmother did to her is incorrect, but still maintained that her stepmother spread the rumours about her being a sorceress because her stepmother was jealous of her. When asked why she would be jealous, the applicant could not explain.
44. The applicant’s claims and her entire case for protection appeared to the Tribunal to be implausible. When that was identified to the applicant, she asked for, and the Tribunal allowed her, time to speak to her representative.
45. When the hearing resumed, the applicant told the Tribunal that she just wanted to apologise and tell the truth. Through the use of an interpreter, she explained that her claims for protection and the information she provided was not true. She said that the purpose of her coming to the Tribunal was because her life was difficult back in PNG, and she was seeking opportunities as life was not easy for her as a young woman in PNG and she has nobody to turn to such as family in Australia and that was why she was seeking a protection visa. She said that there was no other way to get protection in Australia other than to say what she did in her application and claims.
46. She then went on to say that her claims about the sorcery were not true because her biological mother is still alive and she does not have a stepmother as she claimed. She also said that her initial claims that she would be placed into a situation of a forced marriage was also not true.

CONCLUSION AND REFUGEE FINDINGS

47. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear, or that it is well-founded, or that it is for the reason claimed. Similarly, because the applicant claims she faces 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.
31. The Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her 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.^[30] Nor is the Tribunal required to accept uncritically any and all the allegations she makes.^[31]

DELAY

49. When carefully assessing the facts, features and circumstances of the applicant’s case, the Tribunal was informed by the applicant that after being granted a visitor visa, she planned to travel to Australia and spend the period of the visa until making her protection visa application when the visitor visa was about to expire. The Tribunal recognises that her application was lodged the same day that her visitor visa expired, which was three months after she arrived in Australia. When considering the circumstances of the applicant’s original claims, and her concession that the claims she made in that application were untruthful, the Tribunal is satisfied that the three months between her arrival in Australia and when her application was lodged is a significant period of time.
50. When considering that significant delay of three months, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
51. A delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety^[32] and as the Tribunal particularly notes from the applicant’s testimony, she claims were a fabrication of her true position within PNG in that she does not require protection from harm, but rather she was seeking a better and more financially beneficial lifestyle in Australia.
52. The Tribunal has very carefully considered that significant period of delay between the applicant’s arrival in Australia and when she made her application, and after carefully assessing all of the circumstances surrounding that delay, the Tribunal is satisfied that the noteworthy delay correlates with the significant lack of genuineness of her claims that she has a well-founded fear of persecution if she were to return to PNG. Therefore, the Tribunal finds that the delay in lodging her protection visa application adds weight to the finding that her claims do not appear to reflect the reality of her circumstances.

Findings

53. The Tribunal has carefully considered the concession the applicant eventually made during her testimony that her claims were a fabrication and that they did not truly reflect her situation when she lived in PNG. Notwithstanding that the Tribunal acknowledges she made concessions that she was untruthful about her claims for protection, and the death of her mother, she is not found to be an impressive witness, nor is her evidence considered reliable, and ultimately, the Tribunal finds that she is devoid of credibility in that even after she made statements in statutory declarations which were clearly false, she continued to prosecute those false claims at the hearing. It was only when faced with the contents of her statutory declarations that she admitted fabricating her claims for protection and the evidence provided to the department to support her claims.
54. Having given very careful consideration to the evidence provided in this application, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, a real risk exists that she would suffer significant harm or there is a real chance that she would suffer serious harm and her claims are dismissed in their entirety.
55. Having regard to, and carefully considering all the evidence, in particular the facts as outlined above, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as defined in the Act.^[33]
56. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act, and Australia does not have protection obligations in relation to her.

COMPLEMENTARY PROTECTION CONSIDERATIONS

57. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,^[34] the Tribunal has considered the alternative criterion.^[35] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to PNG, there is a real risk that she will suffer significant harm as it is defined in the Act.^[36]
58. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons she claims if she returned to PNG. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.^[37]
59. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to PNG now or in the reasonably foreseeable future she will be arbitrarily deprived of life, the death penalty will be carried out on him, she will be subjected to torture or to cruel or inhuman treatment or punishment, nor will she be subjected to degrading treatment or punishment.

CONCLUSION: REFUGEE CRITERION

60. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.

CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

61. 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 her being removed from Australia to PNG, she will be exposed to a real risk of suffering significant harm.

OVERALL CONCLUSION

62. 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.
63. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
64. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, she does not satisfy the criteria in section 36(2) of the Act.

DECISION

65. 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.

...

---

^[1] The delegate’s decision was provided to the applicant on 19 July 2019.

^[2] The applicant’s application was received by the Department on 2 August 2016.

^[3] The delegate’s refusal was made on 20 September 2022.

^[4] Migration Act 1958 (Cth), s 5H.

^[5] Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).

^[6] On 24 July 2019.

^[7] Migration Act 1958 (Cth), s 36.

^[8] Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

^[9] Migration Act 1958 (Cth), s 36(2)(a).

^[10] Migration Act 1958 (Cth), s 5H(1)(a).

^[11] Migration Act 1958 (Cth), s 5H(1)(b).

^[12] Migration Act 1958 (Cth), s 5J(1).

^[13] Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

^[14] Migration Act 1958 (Cth), s 36(2)(a).

^[15] Migration Act 1958 (Cth), s 36(2)(aa).

^[16] Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

^[17] Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

^[18] Migration Act 1958 (Cth), s 36(2B).

^[19] The applicant’s passport was issued in PNG on 21 July 2009.

^[20] Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

^[21] Migration Act 1958 (Cth), s 36(3).

^[22] Migration Act 1958 (Cth), s 499.

^[23] Migration Act 1958 (Cth), s 36(2).

^[24] Migration Act 1958 (Cth), s 5AAA.

25. ^[25] 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.

^[26] Applicant’s protection visa application lodged with the Department on 2 August 2016, page 20.

^[27] On 12 October 2016.

^[28] Delegate’s letter to the applicant dated 27 February 2019.

^[29] Applicant’s application lodged with the Department on 2 August 2016, page 20, question 89.

^[30] Migration Act 1958 (Cth), s 5AAA.

31. ^[31] 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.

[32] Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423; Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370, [22].

^[33] Migration Act 1958 (Cth), s 36(2).

^[34] Migration Act 1958 (Cth), s 36(2)(a).

^[35] Migration Act 1958 (Cth), s 36(2)(aa).

^[36] Migration Act 1958 (Cth), s 36(2A).

^[37] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.