1611898 (Refugee)

[2019] AATA 1766

1611898 (Refugee) [2019] AATA 1766 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611898

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Sean Baker

DATE:25 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 25 January 2019 at 1:06pm

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – particular social group – member of particular clan or tribe – people who have received a scholarship and studied in Australia – land dispute – beneficiary to family member’s land holdings – tribal clan-based violence – internal relocation – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 36

CASES

Applicant A v MIEA (1997) 190 CLR 225

Kopalapillai v MIMA (1998) 86 FCR 547

MIEA v Guo & Anor (1997) 191 CLR 559

MIMA v Respondents S152/2003 (2004) 222 CLR 1

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age] year old man who was born in [Village 1] in the Milne Bay area of Papua New Guinea (PNG) and lived in [Village 2]. He claims to come from [Clan 1] and to be a Christian.

2. The applicant states that he left PNG to escape harm and also to undertake a scholarship at [Australian School 1]. He states that he has experienced harm in PNG, having had his home broken into and been threatened, he was chased by a man from his village and [stabbed] in the stomach, and knocked out with a bunch of sugar cane. He fears he would be killed, attacked, threatened or poisoned. He fears the clan/tribe form his area that have harmed him in the past

3. He says they will harm him as he is the first born male in his family, which gives him land rights. The people threatening him are in an ongoing land dispute over his family’s land and as the first born he is the primary target. He has been threatened before. He has been warned by his family that it is not safe for him. He and his family have been attacked before and a number of his male relatives have been killed. He claims that studying in Australia has caused jealousy towards him. His family have sought to defend themselves against this other clan.

4. The delegate refused the application, finding that the applicant was a member of particular social groups [Clan 1], people who have received a scholarship and studied in Australia, that some of the harm feared constitutes serious harm, but that the applicant would not be harmed as he came from a matrilineal society, that some of the harm the applicant had experienced came from random criminality, and that he could live elsewhere in PNG including in other areas of Milne Bay province or in Port Moresby, and that he did not face harm for reasons of his education in Australia.

5. The issue in this case is whether the applicant has a well-founded fear of persecution if he returns to Papua New Guinea, or there is a real risk he will suffer significant harm if returned there. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Identity and Nationality

6. The applicant has provided his Papua New Guinean passport to the Department, a copy of which is on the file. As did the delegate, I accept that the applicant is who he claims to be and is a national of Papua New Guinea, which is also his receiving country.

   Protection application

7. He provided a statutory declaration dated 18 September 2015. He claims he comes from [Clan 1] within [Clan 2] and is of [a certain] ethnicity. He grew up in [Village 2] of about [number] people

   ·He was raised by his grandmother, his mother’s [mother]. His grandfather died the year the applicant was born. His mother was abusive. His father left when he was young.

   ·He has [siblings], all younger than he.

   ·Because his grandmother did not have any elder men, she and the applicant and his siblings were easy targets.

   ·He describes a time when members of the same clan came and threatened them and stole his grandfather’s [possessions].

   ·His uncle had to go to the village court because of a dispute with another man.

   ·The government put police in the village but then withdrew them.

   ·He describes people from a different clan stealing his grandmother’s [goods] that she was selling.

   ·When the applicant was in high school a dangerous person from the village murdered a young girl from his own family.

   ·Recently the land in his area has become valuable because it is flat and near the water and people want to live there.

   ·His grandmother owns a lot of the land around [Village 2]. This has gradually been taken by other people. One of the applicant’s brothers was killed.

   ·In around 2004 the elders met to discuss this.

   ·In 2005 or 2006 the applicant was attacked with [an item].

   ·In 2009 his mother’s cousin was killed because of the land dispute.

   ·In around 2001 he was staying with his grandmother’s sister for his safety and he returned to visit his grandmother but was hit on the head with sugarcane.

   ·His brother [has] gone to live with their father.

   ·Because he has been on a scholarship to [a] school, he will also be targeted as they are jealous.

   ·He returned to PNG school holidays 2012/2013 and stayed in Port Moresby with his mother’s sister. She lives in [Location 1], which is dangerous.

   ·In September 2013 he returned to PNG and stayed in [Village 1] with the other students. He did not go to his home village.

   ·He returned in school holidays 2013/2014 and stayed with his aunt again in [Location 1] and saw a child shot and killed when a supermarket was robbed. He was once robbed there.

   ·He also travelled to Milne Bay to stay with his grandmother’s sister and secretly met his grandmother and [brother].

   ·He did not apply for protection earlier because he is shy and private and he felt terrible leaving his younger brother and grandmother in PNG.

   ·He could not live safely anywhere else, [Location 1] in Port Moresby is dangerous.

8. Also provided to the Department were information from a psychologist of [Australian School 1], a letter from [Mr A] as well as his notes of conversations with the applicant, and a letter from the director of boarding of the school. The applicant’s birth certificate was provided, which indicates his parents at the time of his birth [worked as Occupation 1]. A letter from the applicant’s aunt, [Ms B] was provided.

9. To the Tribunal was provided a copy of the delegate’s decision, statutory declarations from the applicant and [Mr A], and a pre-hearing submission.

   Credibility

10. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

11. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

12. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

13. The applicant presented as a credible and believable witness. His evidence was at times confused, but having spoken to him I find that this is much more likely to be due to his young age when the things he is talking about happened to him than any attempt to mislead. The minor inconsistencies identified by the delegate (and I do consider them minor) appear to be reconciled when taking a fair approach to the age of the applicant at the time these things occurred, that young persons may have difficulty recalling and giving importance to events in the way adults do, and to the applicant’s discomfort with talking about and revealing key details, which has been referred to by those close to him and particular in the latest statutory declaration from [Mr A]. Many of the concerns the delegate has identified with the testimony of the applicant appear to me to be due to the fact that the applicant was a minor when most of the past harms he claims occurred. When assessing such evidence, it is clearly appropriate to give an applicant considerable benefit of the doubt – experiences as minors and even as young adults are not recorded or recalled in the same manner as adults and those recalling such experiences cannot be expected to have the same ability to recall and attention to details which adults might have. Other deficiencies appear to be a product of the inconsistency between the applicant’s statements and those of his friend and tutor, [Mr A]. But as [Mr A] explains in his most recent statutory declaration, these inconsistencies were due to his good faith attempts to sort the things that had happened to the applicant into chronological order. But more fundamentally, I do not accept that any adverse view can be drawn from inconsistencies where a third party has elicited information from an applicant. This is not a comparison of like with like. [Mr A’s] recollections of the recollections of the applicant – obtained over a period of time and not sequentially or chronologically, will necessarily differ from the recollections of the applicant.

14. Having considered the written material before me, and having spoken to the applicant and [Mr A] at length, I found them both to be highly credible witnesses.

    Evidence of the applicant at hearing

15. The applicant discussed what had happened to him in Papua New Guinea. In particular he was able to explain the reasons why his grandmother and the applicant had been attacked – he explained that his grandmother owned much of the land around the village, and that without other males – his uncles were either hostile or incapable of helping the family – this land was slowly seized by other clan groups in the area.

16. The applicant described being raised primarily by his grandmother, that his mother lived elsewhere and that he was not allowed to have contact with his father by members of his family. He explained the differences between [Clan 2] to which his grandmother originally belonged and [Clan 1] that she married into. He said his father’s clan was [Clan 2]. He explained that he got confused about these details because his grandmother had tried to shield him and his siblings from the clan conflicts.

17. The applicant explained at hearing that his grandmother had allowed people use of her land but that over time these people had taken over control of that land. He said that despite owning this land his grandmother and he [worked in Occupation 1] but that he was able to [earn] enough to pay for his school fees. He said that over time the conflict about the land became worse and his uncle [was] killed, he said this had happened when they were back from school on holidays and described this in some detail. After this there was, he said, a big discussion in the village about the land. His grandmother was accused of being a witch. The applicant explained that much of the hostility comes from his grandfather’s nephews, and in particular [Mr B], who beat the applicant with a knife. He talked about the incident when a group including [Mr B] came and took his grandfather’s [possessions]. He explains that his grandfather’s family are jealous of him because of the land he is due to inherit from his grandmother. He said that it was not just this family that opposed them however. He said that in around 2005 or 2006 when his grandmother stopped some people from building gardens on her land a group of men came and stabbed him in the abdomen with [an item] which had to be cut out of him. Eventually the attacks got so bad that the applicant had to go and stay in [Location 2] with his great aunt.

18. He said that in the time that he has been away, his grandmother and his brother have had to move to [Location 2] because of the land dispute.

19. The applicant said that his grandmother trusts him more than any others because her brother, the applicant’s [uncle], is not right in the head and the applicant’s brother she does not trust either.

20. The applicant described studying and having to travel for hours to school. He moved to [Location 2] partly for school and partly to avoid being hurt.

21. The applicant said in Year [number] he learned he had got the scholarship to [Australian School 1]. He had moved to Port Moresby to complete his passport and visa and stayed with his Aunt [Ms B] in [Location 1]. He said they had had to move twice in the four months he had been there because of the fighting. He said he had been robbed there twice as well.

22. I asked the applicant about state protection in his village. The applicant said that there had been less fighting when the police were there, but then the police station had moved and now the police never came to the village. He said the village councils were supposed to resolve things but did not do so.

23. The applicant said he could not live in [Location 2], he had been attacked there and he could not stay on someone else’s land. He said he could not live in Port Moresby because it is violent there and because he ran into his uncle’s cousins there in [Location 3]. He said his auntie [Ms B] had been moving a lot because of the violence. He said he could not live anywhere else because of the Wantok system.[1]

    [1] ‘Wantokism’ is a system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society. Wantokism affects most aspects of contemporary life in PNG, including in business and government. In the Tok Pisin language, Wantok means ‘One Talk’, referring to the language of the tribe or clan to which a person belongs. In a tribal-based society such as PNG, the overall welfare of the tribe and its members is paramount. - DFAT Country Information Report – Papua New Guinea, 10 February 2017.

24. The applicant said he would be singled out wherever he went because of the education he had received.

25. The applicant briefly described his life in Australia. He works as [Occupation 2]. He wishes to study [specified discipline] and he works with a group of other [people] on [specified work].

    Evidence of [Mr A] at hearing

26. I have taken account of the information [Mr A] provided to the Department as well as the statutory declaration he submitted to the Tribunal.

27. At the hearing [Mr A] explained that contrary to the delegate’s assertions, [Australian School 1] had stopped the school trips to Milne Bay Province PNG. He explained that the last trip he had attended in 2016 there had been a lot of unrest in villages and violence in some. He described this in detail and that this had led to concerns by the School that it was not safe to continue to take their students and staff there. He said that the influx of mobile phones to the villages meant that news and rumour were able to be spread much faster and this had made the environment more dangerous for some people. He said he had also noticed over the trips he had taken that there was more alcohol in the villages. He said a further factor was anecdotal information from former scholarship recipients who had returned to PNG and had been ostracised and the victims of jealousy. He said that in his opinion having spent a number of years travelling there, he believed the level of violence was increasing in PNG.

28. He explained that the statement he had provided to the Department had been based on a scaffolding of notes he took over a number of discussions with the applicant, that it was hard to piece together because of the applicant’s reticence – he had not had a student come to him with a problem as severe as that.

29. It strikes me also that the evidence of [Mr A] is valuable in establishing that the applicant disclosed much of his story before there was any contemplation of an application for a protection visa, further adding to my consideration that the applicant has been credible.

    Consideration

30. I have carefully considered the applicant’s evidence as well as that of [Mr A]. As above, I found them both to be credible witnesses. The claims made by the applicant are consistent with the first hand experiences [Mr A] has had in this area of PNG. He described significant violent events that they had been made aware of when he was on the trips.

31. The claims of the applicant are also entirely consistent and supported by independent country information. The DFAT Country Information Report on Papua New Guinea observes that whilst it varies in degree according to location, “…the overall crime rate in PNG is extremely high and is characterised by high levels of violence.”[2] In relation to tribal violence the report notes:

    Tensions between and within PNG’s hundreds of different groups occurs frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.

    Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country’s population. Conflicts between various groups are complicated by grievances over access to royalties, benefits, and compensation associated with resource extraction projects in the country, whether mining, gas extraction or logging. DFAT is aware of cases in recent years where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby.

    Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs. In December 2014, the Internal Displacement Monitoring Centre estimated there were about 22,500 people displaced within PNG because of tribal warfare (and natural disaster). In particularly serious cases, provincial authorities may request the deployment of the Papua New Guinea Defence Force (PNGDF) and/or the Royal Papua New Guinea Constabulary (RPNGC) Mobile Squads. These forces are known for taking a blunt approach to restoring security, including through burning villages and holding village leaders for ransom until perpetrators have given themselves up.

    The Inter-group Fighting Act (1977) prohibits inter-tribal fighting. Section 11 (2) of the Act provides for a punishment of between three and six years’ imprisonment where a person has taken part in inter-tribal fighting that has resulted in death. Section 11 (3) of the Act provides for a punishment of between 20 to 30 years’ imprisonment if a Court determines that an individual is a principal offender or a leader of a fight that results in death. While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they will be subjected to ‘payback’ violence (see ‘Glossary’) if they testify.[3]

    [2] DFAT Country Information Report – Papua New Guinea, 10 February 2017, 2.35.

    [3] DFAT Country Information Report – Papua New Guinea, 10 February 2017, 2.36 – 2.39.

1. The DFAT report also discusses payback and it is noted that payback can keep conflicts alive for generations.

2. The United States Department of State Country Report on Papua New Guinea notes that intertribal violence continued as an issue and that ‘Warring tribal factions in rural areas often were better armed than local police, and authorities often tolerated intertribal violence in isolated rural areas until the tribes themselves agreed to a negotiated settlement.’[4]

   [4] United States Department of State, Country Reports on Human Rights Practices 2017 – Papua New Guinea,

3. Research which concurs with other sources indicates that land disputes leading to violence are on the rise in Papua New Guinea.[5]

   [5] Allen, M & Monson, R, Land and Conflict in Papua New Guinea: the role of land mediation, 2014, the institute for regional security, Vol. 10, No. 2, Security in Papua New Guinea, p. 2,

4. Whilst it is established that there are matrilineal societies in Milne Bay Province, country information also establishes that the situation around land ownership and conflict is more complex, with World Bank research stating that ‘in the majority of matrilineal societies land is held conjointly by women with their brothers’. It was also noted that the village court system excludes women from public decision making regarding land. For example, although in Milne Bay Province ‘the kinship systems and land rights are matrilineal, disputes over land are conducted between representative men and women are only called as witnesses’. Furthermore, even in matrilineal societies, men lead negotiations with banks for loans using land as an asset.[6]

   [6] Brouwer, E C, Harris, B M, Tanaka, S (eds) 1998, Gender Analysis in Papua New Guinea, The World Bank, November, pp.1, 16-17 <  

5. Having considered the country information, I find it highly relevant that this information is consistent with the applicant’s claims and therefore plausible. The violent events he has described are sadly entirely common in Papua New Guinea, as noted in the objective country information.

6. Having considered the evidence of the applicant and his witness, as well as the country information, I make the following findings.

7. I find that the applicant was raised primarily by his grandmother, that his father and mother had very little to do with his upbringing, and that partly because of this, but also because he was the eldest grandson and the uncle remaining in the village has mental health issues, the applicant is considered by his grandmother to be the main beneficiary of her land holdings. I accept the applicant’s evidence that his grandmother has substantial land holdings in [Village 2], spanning the [Clan 1] and [Clan 2] parts of the village. I consider the applicant to also be perceived to have been the beneficiary of his grandmother.

8. The applicant has consistently described the conflict between his family (his grandmother, his uncles, and himself) and other members of his grandfather’s family. Like the delegate, I have not been able to find any reference to this dispute in online sources. But I do not consider this significant – [Village 2] is not near the famous and frequently accessed parts of Milne Bay; it is remote, (the applicant spoke of walking considerable distances to school) and I consider it is therefore not determinative whether the conflict can be located in online sources. Taking what I have before me – the evidence of the applicant, which I find has been generally consistent about the conflict given that he was a youth when the conflict was occurring – the evidence of [Mr A] which is consistent with that of the applicant (including his first-hand experience of the situation in Milne Bay province), and the country information, which is also consistent. I find that the applicant’s grandmother was involved with her husband’s relatives, who were of a different clan to her, in a protracted dispute over land owned by her husband which she had inherited on his death. The country information indicates that ownership of land even in matrilineal systems in Milne Bay is more complex than the proposition that female descendants hold the land, and also that women may be excluded from some public decision making and conflict relating to land matters over land that they nominally hold. I find that as a result of this dispute, the applicant’s uncle was killed, and that he and other members of the family were seriously injured. I accept that the applicant was stabbed with [an item]. I find that the applicant and his family were subjected to harm, threats and intimidation by the other clan/members of his grandfather’s family.

9. I find that this dispute is tribal, clan based violence. That is, it is motivated by the perception on the part of the applicant’s grandfather’s relatives to see the applicant’s grandmother and her offspring, including the applicant, as part of the out group, on the basis of intra or inter clan groupings and on the basis of their resentment over the land and other possessions of his [grandfather]. The applicant spoke of how his grandfather’s relatives distinguished his grandmother as differing from them, that she had been accused at one point of being a witch, and that his grandmother and her family had been subjected to consistent harm and threats over the years. I do not consider that the applicant’s aunt’s letter is contrary to these claims. I find that the essential and significant reason for the violence was because the applicant, his grandmother and her offspring are seen as distinct from the rest of the clan, and I accept, as did the delegate, that the violence is at least in part for reasons of the applicant’s membership of the particular social group of member of the [Clan 1] tribe. I do not see the inconsistencies in the evidence of the applicant – bearing in mind his age when these things occurred – and the letter from his aunt find that the violence is connected with and part of a dispute between [Clan 1] and [Clan 2].

10. I accept that when he was staying with his aunt in Port Moresby, he was robbed twice. I accept that his statement earlier that he was robbed once may have been a miscommunication in that he was referring to something that had happened in the past, not the number of times it had happened. Again, I note that the applicant was credible and that much of the events he describes occurred when he was a minor and that he should be given the benefit of the doubt about his relating of these experiences.

11. I do not accept that Port Moresby can be considered a home area of the applicant as that term is understood in case law – he resided in Port Moresby only briefly on each occasion. I also do not accept that other areas of Milne Bay Province (a province stretching over 14,000 square kilometres and several island chains) can be considered the home area of the applicant – he did at times reside at his aunt’s in [Location 2] but this was only a temporary measure. I find that the applicant’s home area is [Village 2] and surrounds.

12. In looking to the future, I note and accept the evidence of [Mr A] that the school has discontinued trips to Milne Bay, that this involved an assessment of risk and concern with increasing violence, fuelled by increasing alcohol consumption in the area. I also note that the scholarships of the school have been re-designed because there is information the school has from former students that those such as the applicant who complete Year 12 in Australia are discriminated against on return to Papua New Guinea.

13. I also note the applicant’s claims that he would be a target of jealousy in the village because he was given a scholarship in Australia. Taking into account the evidence of [Mr A], I accept that this is the case and that the applicant may also be targeted in the future for his membership of the particular social group people who have received a scholarship and studied in Australia – such a group can be distinguished from society at large – [Mr A] spoke of a perception in the PNG community that such persons were a distinct group who had had greater opportunities than most Papua New Guineans and were resented for this reason, and the shared characteristic is not the fear of persecution.

    Does the applicant have a well-founded fear of persecution if he returns to Papua New Guinea?

14. It is very clear to me that from the evidence before me, my consideration and findings above, that if the applicant returns to [Village 2] he will be killed or seriously harmed as a result of the conflict between the [Clan 1] and [Clan 2] over the land in the village. This is for the following reasons. The applicant, and his family, I find, have been targeted for harm in both intra- and inter-clan attacks in [Village 2]. Looking to the future, I note the evidence from DFAT that tribal conflict has become increasingly violent in recent years, and other information that tribal conflict due to land disputes is on the rise. I note also [Mr A’s] comments about the increased abuse of alcohol in the Milne Bay area. The applicant would therefore be returning to [Village 2] in the context of a heightened level of violence and increased chance of that violence occurring. He would return as a member of his grandmother’s family and as the main or one of the main beneficiaries of her claim to land, which I consider would place him at greater risk of harm. On return he would be a young male rather than the child who departed, and I find that this would also increase the risk of him experiencing serious harm, as well as the seriousness of the harm. He would also return as someone who received a scholarship in Australia, further distinguishing him as a target of jealousy potentially leading to resentment and a further increased risk of harm. The applicant has also lived in Australia for a number of years now and may not have the cultural and situational knowledge needed to live safely in the village.

15. The reasons for this harm, as above, would be his membership of the particular social groups ‘member of the [Clan 1] tribe’ and ‘people who have received a scholarship and studied in Australia’, which I find would be an essential and significant reason for the harm he would suffer. This harm would be systematic and discriminatory because it is harm targeted at him and not random. The harm amounts to serious harm because it includes the very real prospect of the applicant being killed or seriously physically harmed.

16. The harm the applicant fears is from members of [Clan 2] and members of his grandfather’s family. The agent of persecution is traditionally the state or an agent of the state. But it is established that, where a person has lost the de facto protection of their government, they are owed protection.[7] This is such a case. The applicant spoke of the authorities having installed police in the village to protect people against the violence related to the land issues, but then having pulled the police out. This in itself indicates that the PNG state is unable to protect people in the village including the applicant from the violence, and therefore that the applicant’s unwillingness to avail himself of this ‘protection’ is reasonable. The DFAT report notes that police are poorly resourced and negligible in some remote areas of PNG,[8] other reports indicate that the authorities tolerate intertribal violence in isolated rural areas until the tribes themselves agreed to a negotiated settlement.[9] I find that whilst there is no official condoning of the violence here, the state is unable to provide a ‘reasonably effective police force and a reasonably impartial system of justice’,[10] I find that the PNG cannot extend to the applicant a reasonable level of protection, such that the harm he fears amounts to persecution and that his fear of this harm is well-founded.

    [7] Applicant A v MIEA (1997) 190 CLR 225 at 257-8 per McHugh J.

    [8] DFAT Country Information Report – Papua New Guinea, 10 February 2017, 5.6

    [9] United States Department of State, Country Reports on Human Rights Practices 2017 – Papua New Guinea,

    [10]   MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28].

17. For these reasons, I find that there is a real chance, that is, one that is not remote or far-fetched, but is a real, if not certain prospect, that he would suffer serious harm such as death or serious physical harm for reasons of his membership of the particular social groups ‘member of the [Clan 1] tribe’ and ‘people who have received a scholarship and studied in Australia’ from members of [Clan 2] and members of his grandfather’s family if he was to return to [Village 2] in the reasonably foreseeable future.

18. I have considered whether the applicant could relocate, either to another part of Milne Bay Province, to Port Moresby, or somewhere else in Papua New Guinea. For the following reasons I do not accept that it would be safe or reasonable for the applicant to relocate to these areas.

19. I have considered whether the applicant could live with his aunt in [Location 2], or elsewhere in Milne Bay Province. But I do not accept that this would remove a real chance of harm befalling him as above. The applicant would feel compelled to return to visit his grandmother, as he did in the past when he lived in [Location 2]. Even if he did not, the spread of mobile phone technology means that conflicts can now spread to other areas – the DFAT report cited above indicates that tribal conflicts have been carried on in other parts of the country, and the spread of mobile phone technology makes it easier for people to provide information about where the applicant is living. Even if the applicant were to be safe in [Location 2] or another part of Milne Bay – and I do not accept that he would be – I do not accept that it would be reasonable for the applicant to relocate to [Location 2] or another part of Milne Bay – the applicant only has experience as [Occupation 1] and as [Occupation 2] in Australia – there is no information before me that someone can gain work in areas of Milne Bay as [Occupation 2], and as the applicant pointed out at hearing, he could not [work as Occupation 1] in another area because he would have no right to [work there]. Given the quite real prospect that he could be located in Milne Bay province, with the issue of how he would subsist I find that it would not be safe or practicable for the applicant to relocate to anywhere in the Milne Bay Province. The applicant is not able to relocate to this area.

20. I have considered whether the applicant could live with his aunt in Port Moresby. As above, the DFAT report notes that tribal conflicts have been carried on in other parts of the country, including Port Moresby and the spread of mobile phone technology makes it easier for people to provide information about where the applicant is living. I note that the applicant says that he saw people of his grandfather’s family in Port Moresby when he was staying with his aunt there. The chance of the applicant being located in Port Moresby and harmed by those who wish to harm him is not, on the information before me, remote. There is a real chance that the applicant would be located and harmed. I therefore find that the applicant cannot relocate to Port Moresby.

21. I have considered whether the applicant can relocate to another part of Papua New Guinea, such as a city like Lae, Madang or Mount Hagen. I accept that there would be very little chance, such as to be remote, that the opposing clan members or his grandfather’s family members or anyone associated with them, would locate the applicant in one of these locations. However, I do not accept that it would be reasonable, in all the circumstances for the applicant to relocate to one of these areas. The applicant has given evidence that his family and wantok are in Milne Bay and Port Moresby. I find that if he was to relocate to another city or town away from these places, he would have to fund accommodation and food with no family support or wantok. Because the applicant only has limited work experience, and would have no capacity to subsistence farm in one of these places, I find that there would be a real danger that the applicant would not be able to subsist in one of these places. I find therefore that it is not reasonable, in the sense of practicable, for the applicant to relocate to one of these places. 

22. Having carefully considered the available or potential places of relocation, I find that the applicant is not able to relocate anywhere within Papua New Guinea for the reasons above.

23. Having found the applicant has a well-founded fear of persecution, having found that he is unable and justifiably unwilling to access the protection of his home country, having found that he cannot relocate to another part of his home country, he is owed protection.

    Conclusions

24. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

25. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a)of the Migration Act.

    Sean Baker
    Member

    
    

    Appendix 1 - Relevant law

26. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

27. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

28. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

29. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

30. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.