1620364 (Refugee)

[2017] AATA 1820

1620364 (Refugee) [2017] AATA 1820 (10 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620364

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Nicole Burns

DATE:10 October 2017

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 10 October 2017 at 2:53pm

CATCHWORDS

Refugee – Protection Visa – Papua New Guinea – Particular Social Group – Intertribal Violence – Lack of state protection – Politically motivated violence – Relocation not reasonable

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

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. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Papua New Guinea (PNG), applied for the visa [in] January 2013 and the delegate refused to grant the visa [in] June 2014.

3. The Tribunal, differently constituted, affirmed the decision of the delegate on 12 November 2015.  The applicant sought judicial review of that decision and the case was remitted to the Tribunal for reconsideration by order [of] the Federal Circuit Court of Australia [in] November 2016. 

4. The applicant appeared before the Tribunal on 1 June 2017 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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).

8. 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.

9. 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant faces a well-founded fear of persecution in Papua New Guinea (PNG) from rival tribal members or whether complementary protection provisions otherwise apply. 

12. The applicant last travelled to Australia on a [visa] in July 2011 on his own PNG passport (a copy of which is on the Departmental file) and the delegate had no concerns with his claimed nationality. The Tribunal accepts the applicant is a national PNG and has assessed his protection claims accordingly. 

13. The applicant claims he is a member of [Tribe 1] from [Province 1] in PNG and his enemy tribe are called [Tribe 2] (and their allies).  He claims to have been physically attacked by enemy tribesmen in [Province 1] in the past and suffered injuries, and escaped attacks a number of times.  He claims he is a particular target and vulnerable to being exposed because he is [an Occupation 1], educated, [details of occupation].  He is also considered wealthy for these reasons and because he has lived in Australia, which would heighten his risk on return.  More recently he claims that he is suspected of supplying guns and ammunition to his tribe (considered in more detail below).  The applicant also claimed to fear being killed by his own tribesmen if he refuses to fight on return.

14. It is submitted[1] that the applicant faces a well-founded fear of persecution on numerous grounds, including because of his membership of [Tribe 1], as [Occupation 1], and considered a wealthy person.  For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution on the basis of his membership of the particular social group of ‘[Tribe 1] tribesmen’ from enemy tribesmen and therefore it has been unnecessary to consider the other grounds advanced.

    [1] In a written submission provided to the Tribunal dated 30 May 2017.

15. The applicant set out his initial protection claims in his protection visa application.  To support his visa application he submitted various articles and a YouTube video documenting tribal violence in his home area in PNG.  Before the first Tribunal the applicant provided a statutory declaration in which he expanded upon his claims and addressed concerns raised by the delegate, dated [in] January 2015.  He also submitted further country information about tribal violence and criminal activities in PNG as well as copies of photographs of his physical injuries on [details of injuries], allegedly as a result of being targeted by enemy tribesmen.

16. Before the current Tribunal the applicant provided a further statutory declaration dated [in] May 2017 in which he provides more details about his claims and addresses concerns raised by the first Tribunal member. Also submitted was a letter from [Mr A], dated [in] August 2016; a statement from the applicant dated [in] June 2017 clarifying his movements in PNG and Australia; and a statutory declaration from [Mr A] dated [in] June 2017 stating among other things that the applicant has been blamed for supplying guns and cartridges used in tribal fights.

17. The applicant’s representative has provided a number of written submissions to the first[2] and current Tribunal[3] in support of the applicant’s claims, which includes reference to country information from a variety of sources about tribal conflict in PNG, traditional dispute settlement, attacks against [Occupation 1], and general violence across the island combined with a lack of state protection, which the Tribunal has taken into account where relevant. 

    [2] Dated 15 February 2015, 29 March 2015, and 5 May 2015.

    [3] Dated 29 May 2017 and 19 June 2017.

18. The Tribunal accepts the applicant is from [Tribe 1] from [Village 1] in [Province 1] and that he qualified as a [Occupation 1] through attending [college] (supported by [benefactors]) and worked as [an Occupation 1] at various [locations] in [Province 1] and Port Moresby in the past.  It notes evidence of his qualifications have been provided to the Department and his passport and other identity documents submitted indicate he is from [Province 1]. 

19. The Tribunal accepts the applicant’s claims as to his family composition: that is his parents [and siblings] who live in [Province 1].  The applicant’s claims that two other brothers died in tribal fighting have been considered separately below (elsewhere) in the decision record.  The Tribunal also accepts the applicant’s claims that he separated from his wife a number of years ago, due to problems in their relationship, exacerbated by the fact that she came from a different tribe. 

20. At the Tribunal hearing the applicant detailed his background and specific incidents of violence directed towards him by his enemy’s tribesmen (summarised below). He also described his particular fears about returning to PNG now: to both his home area of [Province 1] and Port Moresby where he lived since 2008 (until he left the country in July 2011), discussed further below.

21. The applicant told the Tribunal he attended [details of earlier education]. Afterwards he studied at a [college], obtaining a [diploma].  He started [Occupation 1] sometime in the early nineties and [details of Occupation 1].  The applicant said that he made sure he [worked in] areas of relative safety – for example where he was not surrounded by enemy tribes – by [methods used].  The applicant [worked] in a number of [positions] in [Province 1] up until he went to Port Moresby sometime in 2008. 

22. The applicant said he was involved in tribal fighting at various times from around the age of [age], as was his [relatives], who he described at hearing as ‘fierce fighters’.  He said growing up in his village in [Province 1] there was no choice not to be involved.  Young men are told stories from a young age from their fathers and other men about past killings and harm.  However whilst attending [college] and being exposed to the [organisation] from Australia and Europe teachings, he realised their violent way of life was not good and that he (and others) needed to change.  On return to his village after college he tried to raise awareness about such matters and [undertook certain activities].  However it was very difficult, if not impossible, to change the villagers’ mindset about tribal fighting and he was accused of being a ‘woman’, among other derogatory comments, for attempting to do so.

23. The applicant said because he [undertook certain activities] and others during this period he was accused by rival tribal members of supplying weapons to his tribe.  The applicant said his intention when he [undertook the activity] was not to obtain money to buy guns, but for aid posts, schools, churches and other services and infrastructure for his village and surrounds.  However he acknowledged that given [some] of the money may have gone to supplying weapons and ammunition: he said this was necessary to defend their tribe. 

24. The applicant said he left [Province 1] and went to Port Moresby in 2008 because of ongoing tribal fighting and because he had been attacked twice in 2008 and 2007 and escaped an attack in 2000.  His oral recollection of these incidents at the Tribunal hearing are summarised as follows.

    a.In 2000 during a [work event] at the [workplace] in [Village 2], [Province 1] where the applicant was [working], one of his relatives told him some enemy tribesmen had arrived.  The applicant gathered [number] of his ‘boys’ then left straight away, returning to his village which was around [distance] away (on foot).  The next week he returned to [Village 2] where he continued [working] for [period of time].  He kept the [number] ‘boys’ from his tribe with him the entire time, as security.  The applicant believes it was [Tribe 2] members who came to his [workplace] that day to attack him because not long beforehand one of their [tribe members] had been killed by the applicant’s tribal members and they were looking for a place where a [Tribe 1] member was vulnerable (that is the [workplace]).  Also because there were rumours that the applicant had supplied weapons to his tribesmen via the money received from his [activities]. 

    b.In 2007 the applicant [worked] at [details of workplace] in [Location 1], [Province 1], which is about [distance] from his village.  Whilst [working] one day around [number] men from [Tribe 2] entered the [workplace] and one [attacked him] with a [weapon].  [Details of injuries].  Some of the [individuals the applicant worked with] – [acted] and blocked the [Tribe 2 members] whilst the applicant [escaped].  [Details of injuries sustained during escape].  He then ran to his [relative]’s house, also in [Location 1].  Meanwhile his tribe members (or allies) had heard the [disturbance], ran to the [workplace], and chased away the [Tribe 2] members.  The applicant’s [relative] and some elders treated his wounds [with] traditional treatments (salt and herbal leaves).  He believes he was attacked because the enemy tribe members considered he was the one supplying his tribe with weapons and ammunition.  The applicant remained in [Location1] for a few months after the attack, recovering from his injuries at his [relative]’s and other allied tribe members houses.  He did not return to [work] at [Location 1].  The [Superior] reported the incident to the [police] but nothing happened.

    c.In 2008 the applicant [worked] at a [workplace] in [Village 2], [Province 1], which was [distance] from his village.  Whilst he was [undertaking his duties] one day he heard a noise, saw a number of enemy tribesmen running towards him yelling they would kill him, and was [details of attack and subsequent injuries]. A [bystander] was [injured in the attack] ([they] survived, but [their family] were angry and threatened to [retaliate against the workplace]). He ran around [distance] metres to a relative’s house.  When all the [others present at the workplace] started yelling and dispersing, the men who had attacked the applicant also ran away: they were worried for their own safety and possible retaliation, particularly because the attack took place on another tribe’s land. (In his statutory declaration provided to the Tribunal the applicant stated that he knew the attackers, some of whom were from [Tribe 2], in the 2008 attack in [Village 2]; that the attack occurred on land belonging to [Tribe 3]; and that members of [Tribe 3] – allies - chased away his attackers.) On arrival at his relatives’ house, one of the applicant’s relatives [treated his injuries].  He stayed recovering in [Village 2] for another three months but did not return to the [workplace].  Again he believes he was targeted because the enemy tribesmen blamed him for financing weapons used by his tribe.  The [superiors] reported the incident to the police but they did not do anything: the applicant said because of the geography of the [workplace] and limited manpower.

25. The applicant said after about three months in [Village 2] following the incident in 2008 he moved back to his parents’ house in his village before moving to Port Moresby. 

26. The applicant stayed in Port Moresby from 2008 until he departed PNG in mid-2011, with the exception of spending a number of months in Australia over three separate visits in 2008 and 2009[4].  He lived in various places, including [Location 2], with [Mr A], at [a place] where he [worked], and with a friend who was an [occupation] at [a location].  He described a number of problems whilst living in Port Moresby, discussed in more detail below (elsewhere) in relation to the issue of relocation. 

    [4] That is from May to June 2008; November 2008 to February 2009; and from August to September 2009, according to Departmental movement records.

27. In terms of his immediate family, the applicant told the Tribunal his parents, now elderly, live in their village in [Province 1].  They are subsistence farmers.   His father used to be an active tribal fighter but now advises others with regards to tribal fights.  His father has suffered [details of injuries].  His father has [number] wives: the applicant’s mother is his [number] wife.  The applicant has [number] sisters and [number] brothers (two died).  His sisters are married and live with their husbands and children in their husband’s villages, also in [Province 1].  He said they are ‘protected’ by their husbands’ tribe.  His [number] brothers are also married and live at their village ([Village 1]) and sometimes stay at their wives’ villages. They are also subsistence farmers who manage gardens and crops.  When asked if his brothers had ever been harmed in a tribal fight or by their tribal enemies the applicant replied “yes” (he did not elaborate).  He said they are very strong, always on guard, do not move around much and if they do move around it is within a particularly boundary where their own tribe or their wives’ uncles and brothers are present, for security. This explains, the applicant argued, why they have managed to survive so far.    

28. The applicant told the Tribunal about his two brothers who have died: [Brother A] and [Brother B].  He said they were both injured during the same tribal fight in [Province 1] (he could not recall when but said he was [working] in [Province 1] somewhere at the time).  [Brother B] died [details of cause of death].  [Brother A] died sometime later from [details of cause of death]. 

29. The applicant claimed orally and in writing that many other relatives have been injured or died in tribal fighting over the years, including the death of [relatives] in 2014.  Recently, in May 2017 [relatives] were attacked by supporters of a candidate running for [district] elections ([name of candidate]) when trying [to] express their support for the opposition candidate ([name of candidate]).  The applicant’s [relative]’s [detail of injuries] and his [other relative] had [detail of injuries] in the attack.  As well, early in the year the applicant claims a [relative] was killed whilst standing outside a school.

30. The applicant told the Tribunal he fears he will be killed by his tribal enemies on return to PNG – in [Province 1], Port Moresby or elsewhere – as an educated member of [Tribe 1] who has been accused of supplying his tribe with weapons and ammunition.  As such, he is considered instrumental with respect to the tribal fighting and is certain the elders of his enemy tribe have placed his name on a list (he referred to mentioning his name and throwing words into a fire) for their tribe members to target and kill.  When asked why, if that is the case, they were not successful in killing him when he lived in PNG, the applicant said because he moved around a lot and was alert every day: if he heard a rumour (about enemy tribesmen being nearby) he would move.  It was the only way he survived.  When asked if he moved to different [workplaces] and areas in [Province 1] for security reasons or other reasons, the applicant said he needed to make a living and would be very careful about which [workplaces] he went to.  He acknowledged that sometimes he moved on his own accord and sometimes because the [employer] wanted him to move.  He said if he heard about a [superior] who was his relative or was a supporter of a particular party, he would go to that [workplace] because there would be more allies there and more protection.

1. Further, the applicant said [Occupation 1] are more vulnerable and have been killed because there are no security fences around [workplaces] which are often on customary land and may belong to enemies: when they see their enemies it is a chance for them to attack.  The applicant also claimed that as [someone] who received an income, he was considered by many as wealthy which increased his profile and risk.  The representative submitted that the applicant’s perceived wealth also fed into rumours that he was financing his tribe’s guns and ammunition supplies.

2. With respect to the current status of the conflict between the applicant’s [Tribe 1] and his enemy tribe ([Tribe 2]), the applicant told the Tribunal that it never stops, it is part of their tradition and custom, and is in their blood.  He said especially in places like [Province 1], which are least developed, the conflict is ongoing because it is often the only way they solve their problems.  In his written statutory declarations provided to the current and first Tribunal, the applicant reiterates these claims, noting the fighting is brutal, is constant, and people are killed over small things. 

3. The Tribunal accepts the applicant is a member of [Tribe 1] in [Province 1] and they have experienced historical and ongoing animosity with enemy tribes.  In considering the applicant’s specific claims of past harm in PNG, the Tribunal notes concerns with some aspects of the applicant’s evidence, as follows.

4. First, his oral evidence to the Tribunal at times was detailed whilst at other times vague and confused, which casts doubts on the veracity of his claims.  For example he was somewhat vague at times when describing where he worked and lived whilst [working] in [Province 1].  In a statutory declaration provided to the Tribunal pre-hearing the applicant sets out a timeline of events from the time he [began his education] until he moved to Port Moresby, noting that remembering dates was difficult because of the trauma he has experienced, having often been forced to flee on short notice and the fact that he moved around many times when [working] because of fear of tribal fighting.  The representative submitted such vagueness with the applicant’s evidence in this respect is explained by the fact that the applicant worked for around 10 different [workplaces] over a number of years in [Province 1], sometimes for as short as a month because he moved a lot to avoid detection by enemy tribes. Given the Tribunal otherwise found the applicant’s oral evidence detailed and credible, the Tribunal accepts that was the case.  It is willing to accept that his confusion and at times vague oral evidence about what [workplaces] he was working at and over what period for example could be largely explained by the fact that he worked in a number of [workplaces] and moved often.  The Tribunal also notes that his oral evidence in this respect was reasonably consistent with the detailed written timeline of events he provided to the Tribunal.  

5. Second, whilst the applicant mentioned the 2008 incident in his statutory declaration[5] he provided to the first Tribunal he did so in terms of his enemies yelling “kill him” during [a workplace event] but failed to mention that they [details of injuries] as relayed at the current Tribunal hearing (and is a significant omission).  The applicant said he told the agent at the time and is unsure why these details were not included in that statutory declaration.  Although a concern, the Tribunal notes that the applicant has consistently claimed there were two attacks (and one attempted) against him by enemy tribesmen and his oral evidence about the 2008 was detailed and spontaneous and consistent with his detailed written claims to the Tribunal on this matter.  It therefore accepts his claims to have been attacked in the way he described at hearing in 2008.

   [5] Dated January 2015

6. Third, the applicant’s claim at the current Tribunal hearing that two of his [number] brothers died in tribal fighting appears to be a new claim.  At hearing when asked why he failed to mention this fact before, the applicant said he did not talk much at the first Tribunal hearing, and the previous Member did not specifically ask that question.  The Tribunal notes that according to the first Tribunal decision record, the applicant was asked at the hearing on 20 February 2015 if anything had happened to his family members and he said his brothers had been injured during fighting and one had been [injured]; however he did not say he had died.  In his interview with the delegate in 2013 the applicant stated that his [brothers] were living in [Province 1], however in his statutory declaration provided to the first Tribunal dated [January] 2015 he did state that only [number] brothers remained alive.  At the current Tribunal hearing the applicant was unable to recall exactly when his brothers were killed in the same tribal fight – noting one was killed instantly and the other sometime later due to wounds sustained in that same fight – but it is plausible this could have taken place after 2013 when the applicant was interviewed by the delegate and before [January] 2015 as recorded in his statutory declaration provided to the first Tribunal.  It is of some concern that the applicant did not specifically tell the first Tribunal member that his brothers had died.  However, the Tribunal found the applicant’s oral evidence about the circumstances of his two brothers’ deaths in [Province 1] due to tribal fighting detailed, spontaneous and overall credible.  Given country information (set out below) indicates a prevalence of tribal conflict, and a large number of casualties, in deaths in [Province 1] the Tribunal is willing to give the applicant the benefit of the doubt in this respect and accepts his claims that two of his [number] brothers have died in tribal fighting.   

7. Finally, the applicant did not apply for protection during his three visits to Australia before moving here in 2011 and returned to PNG each time, despite his claims to have been attacked and feared serious harm from enemy tribe members in PNG.  He also did not apply for a protection visa in Australia until [January] 2013, yet he last arrived here in July 2011.  In his statutory declaration to the Tribunal the applicant said he was worried about returning to PNG each time, but followed the ‘orders’ of the man who had organised his visa and work in Australia – [Mr B] – who later turned out to have been the architect of an elaborate immigration and labour scam in both the Pacific and [Country 1].  He met [Mr B] – [a] businessman – through [Mr A] in Port Moresby.  With respect to his delay in applying for a protection visa, the applicant explained that was because he had no idea that was an option during his first two trips to Australia where he was essentially working for no money [details of employment] in [a certain state], organised through [Mr B].  On his third trip to Australia in 2011 the applicant said he worked as [an occupation] at a [workplace] in [Town 1], also a job organised through [Mr B]: he received free board and food but was not paid and left after two months. He then worked [details of employment] in [Town 2] and again had no idea about the protection visa option.  He said it was only after meeting an ‘old lady’ at the library in [Town 2] one time when enquiring about enrolling in a course that she told him about it.  In his statutory declaration provided to the Tribunal the applicant said the other islanders he worked with in [Town 2] threatened him not to say anything about what was going on in [Town 2], which was another reason behind the delay. 

8. The representative submitted that the applicant’s delay in applying for a protection visa is understandable given his limited knowledge of the legal system in Australia and limited financial resources when he first arrived.  Also given his particular circumstances on arrival whereby he was brought to Australia and made to work as part of a sophisticated visa and forced labour scam by [Mr B], who was subsequently sentenced to [a term] in prison in June 2016 in Australia for operating a similar scam out of [Country 1].  The representative said the applicant was interviewed by the Australian Federal Police in relation to his treatment by [Mr B].  The applicant confirmed that was the case in his oral evidence to the Tribunal.

9. At the Tribunal hearing the applicant provided a letter[6] from his lawyer [who] essentially confirms the applicant’s past dealings with [Mr B], including being exploited at work – that is made to work long hours for months without being paid.  The lawyer states that when the applicant worked [details of employment] in [State 1] he was isolated and had no access to transportation; when he worked in [Town 2] between November 2011 and January 2013 he worked for approximately 11 [workplaces] in and around [Town 2] and was paid very little once food, fuel and accommodation costs were deducted; and it was not until early 2013 that the applicant was able to travel to get information about a protection visa. 

   [6] Dated [in] May 2017

10. Although not without doubt, on the basis of the letter from the applicant’s lawyer [and] the applicant’s detailed oral evidence about his dealings with [Mr B] which is consistent with his written claims on this matter, the Tribunal accepts his claims that he was lured to Australia with the promise of work and studies yet exploited and isolated once here.  It notes in this regard country information[7] confirms that a former businessman, [Mr B] was the accused kingpin of a visa scam for [migrants] to illegally live and work in [State 1] and that he was jailed for [a term] for [details of charges] in [2016]. The applicant said the AFP told him they believe he was one of the first people caught up in [Mr B]’s scam operating out of the Pacific (preceding the one out of [Country 1]). The Tribunal also accepts that whilst in [Town 2] the applicant worked [details of workplaces] with little pay and was not aware of protection visas until he decided he wanted to study again with the view to possibly [working] here. Given these considerations the Tribunal does not draw an adverse inference from the fact that the applicant delayed in applying for protection in Australia (and that he returned to PNG numerous times before coming here in 2011).

    [7][Source deleted]. 

11. Another concern the Tribunal has with the applicant’s case relates to the reasons he has posited about why he has been targeted by enemy tribesmen in the past and would be so on return, noting his evidence has changed in some respects on this matter since his initial protection visa application.  Specifically, he initially told the Department (and first Tribunal) that he was targeted because he was educated, and [an Occupation 1] and therefore considered a threat by enemy tribesmen.  Also because through [certain activities] he [obtained money] for his village and because he was considered wealthy.  However before the current Tribunal the applicant claims that he is suspected by enemy tribe members of helping fund weapons and ammunition used by his own tribe (through [his activities]).  He claimed at hearing this was the reason he was attacked in 2007 and 2008 and behind the attempted attack in 2000.  He also claims [Mr A], who he keeps in touch with in PNG, has warned him not to return because he is still a suspect in this regard and furthermore, people believe he has been working in Australia to pay for gun cartridges.  A letter and statutory declaration from [Mr A] has been provided to the Tribunal which support the applicant’s claims in this regard.  At hearing the applicant said his enemy tribe also think that because of [Mr A]’s influence his tribe has been able to bring in guns, and he and his parents have supported [Mr A] in the past, which places him at risk.  When asked why he failed to mention [Mr A] at all before the current Tribunal, the applicant said the first Tribunal did not ask him about politics.  The Tribunal is not persuaded by this explanation. Further, it notes he did not explain why he failed to mention he was accused of supplying guns until the current Tribunal.

12. The Tribunal considers there are two plausible explanations for the applicant’s late claim that he has been accused of supplying weapons and ammunition for his tribe (and the accusation continues).  That is because the claim is untrue and the applicant has introduced it to strengthen his claims for protection.  Or because it is true but the applicant was reluctant to let the Department or first Tribunal know in case the Australian authorities suspected he had actually helped supply weapons and ammunition to his tribe in the past in PNG.  The applicant has been adamant in his oral and written evidence to the current Tribunal that although he [undertook certain activities] which [obtained money] for his village, some of which went towards purchasing guns and ammunition, that was never his intention. However he suspected that was the case, noting that they had to defend their tribe.  He has also claimed he and his family have supported [Mr A], who he admits has helped [obtain money], some of which have financed weapons and ammunition.  The applicant has acknowledged that he has been involved in tribal fighting in the past, and that some of the money he [obtained] for his village [was] spent on weapons.  Given these considerations, the Tribunal is concerned that the applicant may have downplayed his role in helping to obtain weapons for his tribe and/or awareness of such.  The Tribunal notes the violent targeted attacks against the applicant in 2007 and 2008 would make sense if that was the case, more so than his earlier claims of being targeted because he was [an Occupation 1]. 

13. Taking into account these considerations the Tribunal accepts the applicant has been accused of supplying weapons and ammunition to his tribe in the past and that these accusations continue.  It is unclear to the Tribunal if the accusations are unfounded or not. 

14. For the reasons above, the Tribunal accepts the applicant’s claims about his tribal membership and incidences of past attacks directed towards him in PNG, as detailed above, noting it found his oral evidence overall detailed and spontaneous and the parts that were vague can be explained by his transience in jobs and movements whilst residing in [Province 1] in the past instead of evasiveness.  In reaching this conclusion the Tribunal has given weight to the letter from [a doctor] dated [in] May 2017 provided in which, after examining the applicant on that day, she concludes that he ‘[details of injuries] as reported by him’. Specifically she opines that [details of injuries]. 

15. As well, the Tribunal accepts that a number of the applicant’s relatives have been killed as a result of tribal violence, including two of his brothers, and other relatives have been injured, some seriously, as claimed.  

16. Given these findings the Tribunal has considered independent country information about tribal violence in PNG and in [Province 1] in particular in assessing whether the applicant faces a well-founded fear of persecution from rival tribesmen on return to [Province 1]. 

17. Australia’s Department of Foreign Affairs and Trade (DFAT) in their recent country information report on PNG describe the prevalence and severity of tribal violence in PNG as follows. 

    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[8].

    [8] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.36 – 2.38

18. The most recent United States State Department country report on human rights practices in PNG confirms that intertribal violence remains a key human rights problem.  The report states:

    Long-standing animosities among isolated tribes, a persistent cultural tradition of revenge for perceived wrongs, and the lack of law enforcement were factors underlying frequent violent tribal conflict in highland areas. During the year tribal fighting continued in the highlands provinces. Deaths and the numbers of IDPs resulting from such conflicts continued to rise due to the increased availability of modern weapons. The Internal Displacement Monitoring Center estimated that approximately 22,500 persons had been internally displaced as a result of tribal fighting and natural disasters. The ICRC estimated the number could be as high as 110,000. There were no reliable estimates for deaths caused by tribal fighting[9].

    [9] United States Department of State, Country Reports on Human Rights Practices for 2016 – PNG,  3 March 2017, section 7, p22

19. Recent media articles indicate that tribal conflicts in PNG are becoming more violent, particularly with the introduction of high-powered weapons, which are relatively easy to buy.  Not only are people killed or injured in the fighting, but gardens, schools, houses and crops and other essential infrastructure is destroyed, and often thousands are displaced[10].

    [10] Catherine Graue, ABC News, “’Spears to semi-automatics’: Papua New Guinea’s tribal conflicts become more violent”, 3 June 2017,

20. An International Committee of the Red Cross (ICRC) report indicates that tribal wars are becoming more destructive; that tribal fights are sparked by disputes over land, resources and other grievances; the fighting leads to dozens of deaths and thousands of displacements each year; and an influx of guns and general breakdown in the traditional rules governing warfare are amplifying the effects of violence[11]. 

    [11] ICRC, ‘The old ways are gone: Papua New Guinea’s tribal wars become more destructive’; June 22,

21. In a 2014 report looking at the drivers of crime and violence in PNG, the World Bank noted that traditional forms of engaging and managing conflict includes payment of compensation, talking as well as retributive fighting or ‘payback’.  With respect to physical fighting being one of the most common ways in which societies handle disputes the report relevantly states:

    ...Fighting can take place with traditional weapons such as bows and arrows, spears or bush knives and, increasingly, with firearms. Fighting, along with the demand and payment of compensation, are important ceremonial events in which norms and values are reaffirmed by the participants. Cultural beliefs and norms encourage revenge-seeking through retributive fighting or ‘payback’, as it is known, particularly for deaths incurred. An attack on an individual is considered an attack on the whole group and any individual linked to one of the groups involved in a dispute can be targeted for ‘pay-back’ actions. Similarly, kin, friends and allies of an aggrieved individual are all equally wronged-against, and all are expected to support fighting. While still common in rural areas, there is significant evidence that the continuation of ‘pay-back’ or retributive actions takes place in urban areas as well[12].  

    [12] Sadaf Lakhani and Alys M. Willman, Social Cohesion and Violence Prevention Team, Social Development Department, The World Bank, ‘Drivers of crime and violence in Papua New Guinea’, May 2014, p.3 [original footnotes omitted]

1. The World Bank report also states, among other things, it is suggested, constitute a major driver of violent conflict in PNG and can continue for decades:

   Active conflicts between clans can take place almost continuously, and are never fully resolved, but rather continue over long periods of time, even decades.  Disputes may lie dormant for extended periods of time, and be drawn upon suddenly when a new event or issue triggers the old claims.  Most disputes are comprised of a mix of multiple claims that have never been resolved, some of which may have been ‘settled’ on a temporary basis[13]. 

   [13] Ibid p2 [original footnotes omitted]

2. The Tribunal accepts the applicant has been targeted and harmed in the past by enemy tribesmen, and suffered serious injuries as a result.  It is unclear to the Tribunal the primary motivations for the attacks, however it notes country information that indicates the motivations can be multifaceted.  The Tribunal is willing to accept the applicant may have been targeted in part because he was accused of supplying arms and ammunition to his tribe and because of his links and support to [Mr A].  The Tribunal also accepts the applicant may have been harmed in the past as a member of [Tribe 1], possibly vulnerable as [an Occupation 1] working at a [workplace] outside his traditional tribal area and perceived as someone who has [details of employment], as submitted.  It also accepts his claims that his two brothers and other relatives have been killed and some relatives injured in tribal clashes. 

3. The Tribunal notes the applicant’s father and his [number] brothers have survived and remain living in [Province 1], despite ongoing tribal animosities. The applicant said at hearing they have been wounded in fights before, but not killed because they are ‘fierce fighters’.  He said they live and work (subsistence farming) in their village area, do not move around much (only to travel to their wife’s villages) and stay within their boundary to avoid contact with enemy tribes.  The Tribunal is willing to accept the applicant’s evidence in this respect, noting his brothers - unlike him - are not educated and have limited opportunities to move outside their province and that this has provided them with some sort of protection from enemies. 

4. The country information set out above indicates that tribal conflict is particularly prevalent in the Highlands region and the violence is worsening with the introduction of high-powered weapons and commensurate erosions of traditional limits to tribal conflict.  Given this information, combined with what the Tribunal accepts of the applicant’s past experiences in [Province 1] and particular circumstances (including being accused of supplying weapons and ammunition), the Tribunal finds the applicant faces a real chance of  serious harm on return to [Province 1] on the basis of his membership of a particular social group of [Tribe 1] from enemy tribesmen now or in the reasonably foreseeable future.  The Tribunal finds the serious harm comprises systematic and discriminatory conduct and therefore amounts to persecution. 

5. Given this finding, it is not strictly necessary to consider the applicant’s fear of persecution on other grounds.  Nonetheless the Tribunal has considered the submission that the applicant’s risk profile on return is increased because of his links to and past support of [Mr A] in [Province 1], PNG.  At hearing the applicant said that he and his parents have benefitted in the past by supporting [Mr A]’s political campaigns.  For example [Mr A] gave his parents money to run their [business] in the village (which was subsequently burnt).  In his statutory declaration provided to the Tribunal setting out his timeline of events, the applicant stated that he supported [Mr A]’s campaign in 2001/2002.

6. After the hearing the Tribunal received a statutory declaration[14] from the applicant in which he advises that his [uncle] was killed in election related fighting in PNG in around June/July 2017 because he supported Don Polye, the former opposition leader of [PNG]. The applicant also advised that [Mr A] [details of campaign]; some of [Mr A]’s supporters were killed in a big tribal fight that started up again; that if he had have been there he would have been killed or seriously injured for supporting [Mr A]; and that [Mr A] told him guns were used that people think he is paying for; as such he fears his enemies will seek revenge against him for the recent deaths.  The applicant also submitted copies of photographs of his deceased uncle and two other men; of men holding weapons allegedly similar to those the applicant is accused of supplying; and depicting the effect of violence in [name of district], such as bodies and houses alight. 

   [14] Dated [August] 2017

7. The Tribunal accepts the applicant’s uncle [was] killed in post-election violence in [Province 1] recently, noting country information indicates that PNG sent extra military and police personnel to [Province 1] and the Southern Highlands to stop fighting triggered by recent elections[15]. 

   [15] "Papua New Guinea expands security crackdown to quell post-election violence", Australian Broadcasting Corporation (ABC): Radio Australia, 18 August 2017, (Opens in a new window) and  "PNG court orders tribal truce", Radio New Zealand International, 16 August 2017,  

8. The World Bank indicate in their report (cited above) that election-related violence, and the distribution of firearms by local political candidates to their allies is significant in the Highlands, and that given this, the stakes in getting someone from one’s own ethnic group into power are high, and as such, one of the key drivers of political violence.[16]  Given this country information and ongoing violence in [Province 1] sparked by the elections, the Tribunal considers the applicant’s links to [Mr A] and his late uncle [who] was killed because of his support to a former opposition leader of PNG significantly enhances his risk profile on return to [Province 1], where inter-ethnic tensions are found to be bound-up in politically motivated violence.[17]

   [16] Sadaf Lakhani and Alys M. Willman, Social Cohesion and Violence Prevention Team, Social Development Department, The World Bank, ‘Drivers of crime and violence in Papua New Guinea’, May 2014,  

   [17] Ibid

9. In this case, the harm that the applicant fears from enemy tribesmen is from non-state agents and the applicant claims that the PNG authorities cannot and will not protect him from that harm. 

10. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

11. The representative submitted that there does not exist an effective police force or an impartial system of justice in PNG; that the authorities generally act with a high level of impunity; and they are not considered effective at protecting citizens or enforcing the rule of law.  Country information from a variety of sources including from Human Rights Watch (2016 and 2017) and the United States Department of State 2016 Country Report on Human Rights practices is referenced in his written submissions, among other sources, which highlights both acts of brutality committed by the PNG police and their lack of resources and training. It is also submitted that police tolerance exists for ‘payback’. 

12. In his statutory declaration provided to the Tribunal the applicant states that the police never tried to stop the tribal fighting in [Province 1] because they would not be able to and they consider it part of life.  Also because the fighters outnumber the police and have more powerful weapons. 

13. At hearing the applicant said the [superiors] at the [workplaces] he [worked] when attacked in 2007 and 2008 reported the attacks to the police, but they did not do anything.  The Tribunal accepts his evidence in this regard, noting it accords with country information set out below about police inaction with respect to tribal violence, particularly in remote areas. 

14. As set out above (earlier) DFAT state that in particularly serious cases of tribal fighting, provincial authorities may request the deployment of the PNGDF, and/or the RPNGC Mobile squads however 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.’  This concern is also reflected in the most recent US Department of State report on human rights practices in PNG which indicates that in the Highlands region, police sometimes use intimidation and destruction of property to suppress tribal fighting.[18]

    [18] United States Department of State, Country Reports on Human Rights Practices for 2016 – PNG,  3 March 2017https:// p.7

15. With respect to legal protection DFAT states:

    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 if they testify[19].

    [19] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.38 and 2.39

16. More broadly on the question of state protection in PNG, DFAT highlight lack of capacity and alleged abuses of power and the use of violence by police as follows:

    Resource constraints limit the effectiveness of the RPNGC, particularly in relation to staffing. The RPNGC’s numbers have remained static over the past few decades despite a huge growth in PNG’s population. The police presence is negligible in some remote areas of PNG. Transport limitations, including a lack of vehicles and fuel, limit the RPNGC’s ability to investigate crimes. The police also endure poor working and living conditions, including low remuneration; frequently need to assert themselves in violent environments often without weapons or protection; have family/clan obligations to meet; and are generally poorly trained, particularly on human rights.

    International human rights bodies have consistently highlighted alleged abuses of power and the use of violence by police.

    ...

    In May 2015, the government dismissed Geoffrey Vaki as Police Commissioner; Prime Minister O’Neill stated that Vaki had ‘overseen the police force over a time of terrible decline in standards and a litany of cases of police brutality and issues that have upset the public’. [20]

    [20] Ibid at 5.6, 5.7, and 5.9.

17. With respect to resolving tribal disputes, DFAT indicate that the disputants are often brought before Village Courts and that:

    Generally, a cash payment is offered as compensation to resolve the dispute. However, it may happen that the communities are not satisfied with the financial compensation offered, which could give rise to renewed fighting. In addition, Village Court mediations may foster impunity if the tribal fight involved crimes such as killing or rape and serious physical injury[21].

    [21] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 5.20

18. There are a number of reports[22] that indicate that in many locations in PNG, police lack sufficient personnel and resources to prevent, or to effectively respond to, tribal violence and that warring tribal factions in rural areas are often better armed than local police, which result in them being reluctant to intervene. 

    [22] See for example, Sadaf Lakhani and Alys M. Willman, Social Cohesion and Violence Prevention Team, Social Development Department, The World Bank, ‘Drivers of crime and violence in Papua New Guinea’, May 2014, and the United States Department of State, Country Reports on Human Rights Practices for 2016 – PNG,  3 March 2017https:// p.4

19. Reports also indicate corruption within the police force is widespread[23] and that police brutality and impunity are serious and ongoing problems[24].

    [23] Human Rights Watch, Human Rights Watch World Report 2017, 13 January 2017, p.475, and Bertelsmann Stiftung’s Transformation Index, 2016, Papua New Guinea Country Report 2016, p.11,

    [24] United States Department of State, Country Reports on Human Rights Practices for 2016 – PNG,  3 March 2017 pp2 & 4; Human Rights Watch, Human Rights Watch World Report 2017, 13 January 2017, p.477, Bertelsmann Stiftung’s Transformation Index, 2016, Papua New Guinea Country Report 2016, p.10, Pacific Community, Human Rights in the Pacific.  A situational analysis, 15 September 2016, p.99, and Gerber, P et al, Australian Journal of Human Rights, Vol 22 (1), Human Rights in Papua New Guinea: Is this Where We Should Be Settling Refugees?, 4 October 2016, p.35,

20. Given this country information the Tribunal is not satisfied that the state of PNG can meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his membership of a particular social group of [Tribe 1] tribesmen if he returns to [Province 1], now or in the reasonably foreseeable future.

21. The Tribunal has gone on to consider if the applicant could avoid the harm he fears from enemy tribesmen in [Province 1] by living elsewhere in PNG, including Port Moresby where he lived from 2008 until 2011 before leaving the country the last time. 

22. The applicant gave oral evidence about his experiences living and working in Port Moresby from 2008 until July 2011 (with three visits to Australia). He stated that during this period he worked at [workplaces] [and] lived in various places, including at [Mr A]’s house, at the [residence], at [Location 2], and [another location], for example).  In a post-hearing submission and statutory declaration from the applicant to the Tribunal, the applicant provided more details about where he lived and worked whilst in Port Moresby.  His confusion and vagueness at hearing in this respect was attributed to the fact that he moved around a lot, worked in a number of different [workplaces] (sometimes for only a month), and was in effect in hiding (he claims) during his time in Port Moresby, which was interspersed with periods of absences when he went to Australia.  He writes that he moved around between a number of [workplaces] including [details of workplaces].  The Tribunal notes a letter dated [in] May 2009 from the [employer] provided to the Department confirms his employment at [a workplace] in Port Moresby as well as a letter from [another employer] confirming his [employment] and noting at the time – February 2011 - he was [working] at [workplace].  The Tribunal accepts the applicant’s evidence as to his living and residence in Port Moresby from 2008 to 2011, accepting that his vagueness with aspects of his evidence in this respect can be attributed to the fact that he moved around and [worked] in many different [workplaces], sometimes for very short periods.

23. At hearing the applicant described a number of incidences that occurred whilst he was living in Port Moresby. This included his [workplace] at [Location 6] being damaged on one occasion, with [details of damage].  The applicant said he discovered the damage when he [entered the workplace] one morning.  The day before a woman selling [goods] at the [front of the workplace] had told him she saw some men from his enemy tribe, so he had gone home. The applicant told a police officer at [Location 2] about the incident and [his superior] reported the incident to the police at [a] police station, however nothing was done.  The Tribunal found his evidence about this incident at hearing was vague in some respects, for example he could not remember how long he had been [working] at the [workplace] when the incident occurred (or the date of the incident).  The representative submitted that was because he was very transient, working in a number of [workplaces] during this period and some back and forth.  The Tribunal accepts that was the case and is willing to accept the [workplace] where the applicant [worked] at [Location 2] in Port Moresby was vandalised as claimed, and that whilst the incident was reported to the police, they took no action.  However the Tribunal finds his claim that enemy tribesmen were responsible because a woman selling [goods] at the front of the [workplace] told him she had seen some [Tribe 2] tribesmen hanging around the day before is purely speculation. 

24. The applicant also said at hearing that two enemy tribesmen ([Tribe 2]) who lived in [Location 2] threw bottles at the room he was in one day, and swore at him.  The Tribunal accepts that may have occurred but the fact that they did not seem interested in harming the applicant indicates to the Tribunal that they did not consider him a particular threat or target at the time. 

25. The applicant said he was safe whilst [working] at [details of workplaces].  Although the Tribunal does not accept the applicant was in hiding for the whole time whilst living in Port Moresby, given he continued to work in a number of different [workplaces] and lived in different areas, and [undertook other activities], the Tribunal is willing to accept the applicant limited his movements whilst living in Port Moresby, and lived either with clan members, [Mr A] or at [a safe location] as a form of protection against enemy tribesmen harming him in the capital in the past. 

1. When asked at hearing if he could relocate on return to PNG to avoid the harm he fears from enemy tribesmen in [Province 1] the applicant said before he left PNG there was already a mentality that he had been supplying guns to his tribe and was considered a rich man in PNG society (given most villagers are illiterate and subsistence farmers) and the risk would be greater on return after a long period of time in Australia.  In Port Moresby his enemies exist and base their information on information from the village (where the rumours and misinformation abound).  He said the month before the hearing he visited [Mr A] [who] warned him not to return, because the rumours of him financiering his tribes’ weapons and ammunition had worsened.  He is being accused of supplying weapons from Australia.  The applicant said members of his family in PNG have also told him this news.  If someone is killed, he is being blamed.

2. In his statutory declaration provided to the Tribunal the applicant said tribal fighting from [Province 1] follows people to Port Moresby; there people have to live in an area with their clan; when travelling to a different area of the city they can come across enemy clans; and if he returned news would spread quickly about his return and he would be targeted by people who think he is supplying weapons or money for weapons.

3. The representative submitted that relocation in the applicant’s case is neither safe nor reasonable for a number of reasons.  These include because he was essentially in hiding whilst he resided in Port Moresby in the past; if he returns and works as [an Occupation 1] again his identity and tribal affiliation would quickly become known, exposing him to enemies; the applicant’s enemies and their allies have migrated to Port Moresby; and that Port Moresby is, very dangerous with high crime rates and ‘raskol’ gangs are everywhere and control the streets.  

4. The Tribunal accepts that the applicant was attacked by tribal enemies in the past in [Province 1], and for reasons above that he faces a well-founded fear of persecution on return there. 

5. Country information from a variety of sources indicates that tribal conflict has been carried out in major urban centres, including Port Moresby. For example, DFAT state:

   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[25].

   [25] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.37.

6. In a 2015 report Minority Rights Group International state as follows:

   Urban conflict has increased as cities have become more ethnically diverse, with tribal fighting – a frequent issue between different ethnic groups in the country – now normalized in major urban centres. Furthermore, Port Moresby is also plagued by so-called 'rascalism'. This phenomenon, centring around youth gangs defined along community and cultural lines, has reinforced ethnic division in the capital. The decline of traditional conflict resolution systems, such as village courts, has meant that some communities have become more dependent on wantok for protection. Wantok – literally meaning 'one talk', someone who speaks the same language – previously served in part as a social support system among rural communities, but in Port Moresby and other urban areas it is frequently adapted to support identity-based criminal gangs, in the process deepening urban divisions. A particularly high-profile case of ethnic violence occurred in January 2011, when an argument between two men from different highland provinces led to an outbreak of fighting between factions of their communities that killed five people. Women are especially vulnerable in Port Moresby, as the city has high levels of sexual assault, domestic violence and rape[26].

   [26] State of the World’s Minorities and Indigenous Peoples 2015 – Papua New Guines, Minority Rights Group International, 2 July 2015 -

7. The World Bank has observed that whilst inter-ethnic tensions – which constitute a major driver of violent conflict in PNG – is more common in some rural areas, inter-ethnic violence is also present in urban areas, particularly in settlements, ‘and that some of the violence is ‘transferred’ between rural and urban areas through wantoks and migration.’[27]

   [27] Sadaf Lakhani and Alys M. Willman, Social Cohesion and Violence Prevention Team, Social Development Department, The World Bank, ‘Drivers of crime and violence in Papua New Guinea’, May 2014, p 6

8. News report indicates in recent years that tribes from provinces, particularly the Highlands, have carried on tribal violence in other parts of the country, including Port Moresby and Lae[28]. 

   [28] Liam Cochrane, ABC , 21 May 2015 ‘Papua New Guinea tribal clash results in 12 injuries, including man with arrow lodged in eye socket’, ‘Stop mindless payback violence’, The National, 9 March 2015 , ;‘Stamp out ethnic violence for good’, The National 19 January 2015  ;‘Ethnic riots running cities, towns’ The National 20 April 2016;>

   On the basis of such country information that indicates that tribal conflicts from other regions sometimes extend to urban centres, including Port Moresby and Lae, the Tribunal is not satisfied that the applicant would be able to safely avoid the serious harm – including payback killings - he fears from enemy tribesmen in [Province 1].   Whilst the applicant lived in Port Moresby for a number of years prior to coming to Australia and was not seriously harmed, the Tribunal accepts that he limited his movements at times and lived with either other clan members, [Mr B] or within the [details of safe area] to limit his exposure to enemy tribesmen.  Weighing up these considerations, the Tribunal does not find that relocation is a reasonable or safe option in the applicant’s case.

9. For reasons set out above the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group of [Tribe 1] tribesmen should he return to PNG now or in the reasonably foreseeable future.

   CONCLUSION

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

    DECISION

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

    Nicole Burns
    Member