1721044 (Refugee) - [2020] AATA 2231

1721044 (Refugee) [2020] AATA 2231 (11 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721044
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Michael Hawkins
DATE:11 March 2020
PLACE OF DECISION:  Brisbane
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 11 March 2020 at 5:26pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – male members of families targeted for retributive tribal violence – political conflict – intended target of a payback killing – past experiences of violence and harm – credibility assessment – claim plausibility – delay in seeking protection – voluntary return to country of nationality – corroborative evidence of claims – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Papua New Guinea, applied for the visa on 14 July 2016. The delegate refused to grant the Visa on the basis that the applicant is not a refugee as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter be remitted for consideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Background:
The applicant claims to be a [age] year old man from Chimbu Province in the Highlands Region, Papua New Guinea (PNG).
The applicant is separated.
The applicant arrived in Australia most recently [in] April 2016, pursuant to a [tourist] visa granted on 8 April 2016.
The applicant applied for a protection visa on 14 July 2016.
The applicant attended an interview with the delegate on 29 August 2017. He provided a pre-hearing submission and two witness statements prior to this hearing.
The applicant has an extensive travel history between PNG and Australia from 2014 to 2016. He returned regularly to PNG in order to comply with the conditions of his tourist visa.
Claims:
Summarised from written claims:
The applicant claims to fear persecution from enemy clans, being [Clan 1], [Clan 2], [Clan 3] and [Clan 4].
The applicant claims that after the 1992 election, there was political conflict between his clan ([Clan 5]) over voting.
The applicant claims that from 1992 there has been tension between the clans, often resulting in violence. The applicant claims that during this time, many people had lost their lives. He claims that his cousin from [Clan 5] killed many tribesmen from the enemy tribes during this time, resulting in anger from his enemy clans.
The applicant claims that in his culture or tradition, the warring tribes must come to a compromise through an exchange of feasting. The applicant claims that his tribe has not yet participated in this exchange, therefore, the tribesman are looking for payback for all of the lives lost.
The applicant claims that in 2002, there was another election, during which he was shot whilst in the village. He claims that he feared for his life, so travelled to Port Moresby to live with his sister for protection.
The applicant claims that in 2012, members of his enemy clan found him in Port Moresby and that he was beaten. He claims he lost two teeth, that he was cut with a knife and beaten with different objects.
The applicant claims that if he returns to Port Moresby, he will be hunted and killed. He claims that the culture of payback means this conflict will continue through generations until he and members of his family are killed.
The applicant claims that Papua New Guinea is corrupt. He claims that if you want protection from the Police, you have to pay a bribe and even then it is possible that your enemy has also paid the Police.
The applicant claims he is unable to relocate as Papua New Guinea is a small country and it is likely that his enemy clans will continue to look for him no matter where he goes.
Summarised from Statutory Declaration and as summarised in the Delegate’s decision.
The applicant claims he grew up in Port Moresby, and in 1997 his family returned to [Village 1] in Chimbu Province. He claims he returned to Port Moresby again in 2002.
The applicant claims that the 1992 general election in Chimbu Province triggered tribal fights. He claims his clan voted for one candidate whilst other clans voted for a different candidate. He claims that after the other clans’ candidate lost, they became angry and came to the applicant’s village to burn their houses.
The applicant claims his older cousin’s house was the first to be burnt down and for payback, the cousin killed the people who were responsible for burning his house.
The applicant claims the tribunal fight has continued for many years, with several people being killed and several properties destroyed.
The applicant claims that in 1997, more houses were burnt down during another general election. The applicant claims that he was at school and his school was near the enemy clans’ village. He claims he told the Principal that he would be killed as he was from [Village 1] and the Principal called the Police who then escorted the applicant safely to his village.
The applicant claims that during the 2002 general election in Chimbu Province, he was shot in his right [Body Part 1], and that a doctor stitched the wound and stated that the pellet would eventually fall out.
He claims that after he was shot, his sister arranged for him to return to live with her in Port Moresby.
The applicant claims that in 2012, some people from enemy clans, who also lived in Port Moresby, saw him at a market. He claims they followed him, beat him and used a metal rod and that he was unconscious and lost two teeth. He claims he was saved by people in the market and taken to [Hospital 1] where he was treated for a bruised face, a cut on the back of his neck and for his teeth.
The applicant claims he went to the police, however, nobody was arrested. The applicant claims that the police did not take these incidents seriously as they believed it is part of their tradition and culture and they would not help people who do not have money to bribe them.
The applicant claims that he heard that enemy clan members would tell people that they would find and kill him.
The applicant claims his wife left him in 2013 as she feared for her life. He claims they would still be married, however, she was afraid for her, as well as for their children’s, safety.
The applicant claims that he would seek refuge in the homes of friends and family to hide from enemy clan members. He claims that he was constantly scared to move around freely.
The applicant claims that his siblings did not face the same harm as him as they lived safely in their wives’ villages in different provinces.
He claims that his wife would never live in a village as she has spent her entire life in the city and it would not be safe for them to return to Chimbu Province.
The applicant claims that if he returned to Papua New Guinea, he fears that he would be killed because violence would continue as the clans had not reached a compromise.
The applicant claims that he came to Australia in 2014 and 2015 as it was the only place that he felt safe. He claims he stayed in a backpacker’s hostel on both trips until he ran out of money and after this he lived mainly on the street. He claims he was unaware that he could seek protection.
The applicant claims that when he returned to Papua New Guinea in October 2014, friends and acquaintances warned him that enemy clans planned to attack him and he moved from house to house.
The applicant claims he returned to Australia in 2015 as he feared for his life.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicant’s protection visa application forms completed and lodged on 14 July 2016 (“visa application”).
- The applicant’s identity documents being a copy of passport and birth certificate ;
- A statutory declaration of [Mr A] dated 24 October 2016;
- A statutory declaration of the applicant dated 22 August 2017;
- Certificates of the applicant’s academic results;
- Birth certificates of the applicant’s children;
- A record of interview with the delegate dated 29 August 2017;
- The protection visa decision record (‘delegate’s decision record’) of 5 September 2017;
- The application for review form lodged on 8 September 2017 which did include a copy of the delegate’s decision record;
- Pre-hearing submission dated 12 February 2020 from the representative including:
- Submission dated 20 February 2020 attaching the applicant’s family patrilineal family tree;
- Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Papua New Guinea, published on 10 February 2017.
Pre-hearing Submission
The Representative for the applicant sent to the Tribunal pre-hearing submissions dated 12 February 2020. The submissions are set out as follows:
ELIGIBILITY FOR PROTECTION VISA
3.[The applicant] is an asylum seeker who arrived in Australia by air and was immigration cleared.
4.We submit that [the applicant] is a non-citizen in respect of whom Australia has protection obligations because he is a refugee, or, alternatively, because there is a real risk he will suffer significant harm if removed from Australia to his country of nationality, Papua New Guinea.
5.[The applicant] has not previously made an application for protection in any country. We have no reason to believe that [the applicant] has been assessed as a risk to security in Australia.
6.We submit that the grant of a protection visa to [the applicant] is in the national interest.[1]1
[1] Migration Regulations, reg 866.226.
IDENTITY
7.We submit that [the applicant]’s identity as a national of Papua New Guinea is established by his identity documents and was accepted by the Delegate at first instance.
RESPONSE TO DECISION
8.The Delegate has summarised the claims made by the Applicant and the Factual Findings of the Delegate in response to these claims.
9.We take this opportunity to provide a response on the factual findings of the Delegate.
Clarification
10.On paragraph eight of page five the Delegate stated the following:
“…While the incident occurred in 2012, the applicant did not travel to Australia until August 2014, and then he returned twice to PNG. The applicant had a stable residential history at his sister’s house in Port Moresby…”
11.The applicant takes this opportunity to clarify the record noting in the period following the 2012 assault that he did not have residential stability but remained in hiding, regularly moving form residence to residence. The applicant notes that this consistent instability was a determinative factor in the dissolution of his marriage in 2013.
12.We submit that this is a significant factual mischaracterisation of the applicant’s claims as it suggests the applicant’s claims lacks the necessary subjective element to satisfy a requisite ‘fear of harm’.
Credibility in General
13.The Delegate indicated in the Protection Interview that aspects of [the applicant]’s claims were not accepted as credible. The decision record does not suggest any concern in respect to the consistency or clarity of the Applicant’s testimony. It is understood that this finding did not stem from particular concerns as to inconsistency or demeanour of the applicant (being personal credibility concerns), but rather to the plausibility of the claims themselves (being claim credibility concerns).
14.Accordingly, the Delegate’s finding is relevant as it raises the issue of whether the applicant has satisfied the burden of proof to establish the factual basis of the well- foundedness of his fear of harm.
15.We refer, as a starting point, to the UNHCR Handbook on the assessment of credibility in Refugee Status Determination (RSD) processes, which notes:
After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. […] It is hardly possible for a refugee to ‘prove’ every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.[2]
[2] UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV.3, available at: at [196].
… while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.²
16.This principle recognises that an applicant’s life and/or integrity may be put at grave risk if international protection is wrongfully declined.
17.We submit that the Delegate should be guided by the comments of Justice Beaumont in Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs who clarifies:
Proof of persecution in the context of an application for refugee status is a matter of some complexity. As Grahl-Madsen has noted (The Status of Refugees in International Law at 145-6), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his; and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state “should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with”. This should not, however, lead to “an uncritical acceptance of any and all allegations made by suppliants”.[3]
[3] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
18.Likewise, the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[4]
[4] Guidelines on the Assessment of Credibility (July 2015) Available at and guideline authorities suggest in the first instance that a liberal approach be taken to assessing credibility. With this foundation in mind it is worth considering the precise approach to be taken in plausibility assessments of factual material claimed by the applicant.
Plausibility Findings in Claim Assessment
20.The applicant makes the claim that he has been the intended target of a payback killing as a consequence of his paternal cousin’s culpability in the murder of members of an opposing clan. The applicant claims that the cause of this intended retributive payback was generated in 1997, has escalated at various points, notably 2002 and 2012, and maintained a consistent threat of harm. The applicant claims that this durable and long-lasting threat is both particular to and consistent with the culture of Papua New Guinean clan conflict.
21.In effect, the applicant makes the claim his fear of this kind of harm is both plausible and consistent within Papua New Guinea.
22.The Delegate, in assessing these claimed facts, made the finding that both the duration of time between the incidences of harm and the relational (and geographic) distance of the applicant from initial incident lead them to the spare and sole conclusion that it was not ‘credible that the applicant was targeted due to clan violence.’
23.To reject material claims on the basis of credibility necessarily constitutes a plausibility finding.
24.Firstly, we note that particular care should be taken in regards to assessments of credibility that specifically relate to the plausibility of factual claims made by the claimant. Given the general rule within administrative law that decision-makers should not make findings on the basis of no evidence[5] or based upon irrelevant considerations,[6] findings of implausibility should only be made upon satisfaction of a relatively high evidentiary threshold.
[5] The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 120.
[6] Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24, 39.
25.Similarly, the Federal Court has cautioned that ‘clear and cogent evidence’ is necessary for findings of implausibility or ‘incredibility’ of claims.[7] Young has also cautioned on the tendency of “deciding cases without thinking too deeply” and relying on assumptions without regard to the unique circumstances of individual cases.[8]
[7] Thevandram v MIMA [2000] FCA 1910.
[8] PW Young, “Fact finding made easy” (2006) 80 ALJ 454.
26.In its 2013 report ‘Assessment of Credibility in Refugee and Subsidiary Protection claims under the EU Qualification Directive: Judicial criteria and standards’, the International Association of Refugee Law Judges (IARLJ) declared a set of ‘EU judicial standards of good practice in credibility assessment’. The IARLJ made the following observations with regard to plausibility:
Plausibility may potentially reflect the subjective view of the judge. Awareness of the judge’s own personal theories of “truth” and “risk” should be noted by the judge to ensure objectivity is maximised. It is a fundamental characteristic of refugee and subsidiary protection claims that their proper consideration requires that specific conditions applicable in the claimant’s country of origin be understood and reflected in the assessment. Rejections of evidence for implausibility must be fully reasoned, including explanations provided by claimants in regard to the potentially implausible parts of their evidence. Decisions based solely on implausibility are likely to be less persuasive than those based on a wider range of basic criteria.[9]
[9] International Association of Refugee Law Judges, Assessment of Credibility in Refugee and Subsidiary Protection claims under the EU Qualification Directive: Judicial criteria and standards (2013), available at: rev1.pdf, p.35
27.To decide that an event is ‘intrinsically’ implausible, without corroborating country information evidence beyond the decision-maker’s personal sense, may fall afoul of the ‘no evidence’ rule and hence constitute an error of law.[10] In W321/01A v Minister for Immigration and Multicultural Affairs, Lee J observed that a finding of ‘implausibility’ requires more than bare assertions; a decision-maker may only make such a finding where the claimed events are inconsistent with other identifiable facts, or else ‘so beyond the human experience of possibilities that they may be said to be inherently unlikely’.[11]
[10] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. 358 (Mason CJ); Guy Coffey, ‘The Credibility of Credibility Evidence at the Refugee Review Tribunal’, 15 International Journal of Refugee Law 377, 391-392.
[11] W321/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 210 (11 March 2002) [30].
28.We submit that Tribunal may find that the Delegate’s decision did not provide sufficient corroborating evidence for its bare assessment that the applicant’s claims were implausible.
29.Secondly, care should be taken when assessments of probability or likelihood are the basis for a finding of implausibility. Ipp JA (writing extracurially) notes that the assumption in RSD processes that “implausible” or “improbable” events could not, in fact, have occurred is an error of reasoning.
Hindsight illusion can lead a judge to overestimate what could have been foreseen by others and to regard what actually happened as inevitable…
t]he improbable is, by definition, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented.[12]
[12] Justice D Ipp, “Problems with Fact-finding” (2006) 80 ALJ 667, 670.
30.Likewise, in Rajamanikkam v Minister for Immigration and Multicultural Affairs, the court cautioned decision makers, noting that one should not necessarily impose expectations of reasonable or logical conduct upon groups who have no reason to act in such a way, and who may indulge in perverse or irrational acts without fear of consequences.[13] Unwarranted assumptions may be evidence of illogicality or irrationality, or else demonstrate a lack of proper engagement with and consideration of material.
[13] Rajamanikkam v Minister for Immigration and Multicultural Affairs [1999] FCA 1411 (9 November
31.We submit that decision-makers should not proceed upon the assumption that agents of persecution in other nations (particularly non-state actors) act in a uniform, predictable fashion, treating like individuals in a like manner. In assessing plausibility, decision-makers must consider aggressors’ degree of training and education, their command structure and any triggers to persecution.
32.In the current instance, given that longstanding clan conflicts are perpetrated by low- educated tribal leaders and are vulnerable to escalation through external triggers (elections etc.), it is unlikely that the consequential incidences of harm will follow an identifiable pattern or rationality.
33.We submit that the Tribunal may find that the Delegates decision was flawed insofar as it was premised on an assessment of credibility that did not account for the inherent irrationality of the actors involved.
34.Thirdly, as outlined by the IARLJ, plausibility must be assessed by reference to the political, social and cultural context of the events in which the alleged events occurred, not by reference to Australia. A series of events which is unfamiliar in the Australian cultural context may be justified by the reference to the mores, tradition or expectations of another culture.[14] We refer to Douglas Macdonald who notes in regards to implausibility assessments:
[14] Horvath v Secretary of State for the Home Department [1999] Imm AR 121; Iqbal Singh Bains v
[Some] RSD officers proceed upon this unreasonable, unquestioned assumption — deciding that certain claimed events or actions are implausible without due regard to the role of culture in shaping individuals’ actions, including the role of the RSD officer’s own culture in determining their construction of what is ‘plausible’.
This approach to plausibility assessment, despite its prevalence, is fatally flawed. Decisions as to plausibility should not be based upon personal conjecture as to what other governments or groups would do in particular circumstances, or assume a level of predictability and continuity in governmental decision- making in contexts where nothing of the sort exists [15]
[15]Douglas Mcdonald, Simply Impossible: Plausibility assessment in refugee status determination, Alt Law Journal, Vol 39:4, 2014 p241.
35.While the Delegate referred to Country Information, it is not clear that the Delegate contemplated that the country information could substantiate both a long-running tribal conflict nor a conflict that primarily targeted the males in a family line nor an intermittent risk of harm. We submit that Tribunal may find that the Delegate’s decision was flawed insofar as it did not take into account cultural patterns unique to the Papua New Guinean context.
36.Assessments of claim credibility (or claim plausibility) require a decision maker to indicate the corroborating grounds for such a finding; to substantively engage with the claims; to avoid characterising improbable or unreasonable actions as immediately implausible and, lastly; to discharge the responsibility to consider the cultural context of the claimant.
37.As discussed below, we submit that it is open the Tribunal to find that claims of the applicant are factually consistent with country information, even to the specific extent that while the actions of the agents of persecutions appear irrational and improbable, they are in fact seamlessly consistent with cultural norms.
Well-Founded Fear
38.The ‘well-founded fear’ of persecution under the Refugees Convention definition has a subjective and objective element.[16]
[16] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
39.The subjective element of ‘well-founded fear’ concerns the state of mind of the Applicant. The Applicant states he fled Papua New Guinea and cannot return because he fears being further targeted and possibly killed by members of his opposing clan. The Applicant has been the subject of such serious harm in the past. We refer to the enclosed Letter of Support from [Dr B] dated 31 January 2020 which substantiates the Applicant’s claimed injuries.
40.It is our submission that the Applicant’s statements are sufficient to establish that the Applicant has a subjective fear of serious harm if he is returned to Papua New Guinea.
41.The objective element of ‘well-founded fear’ requires there to be a factual basis for the fear. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[17]
[17] Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 572.
42.The courts have developed the ‘real chance’ test to assess the objective element of ‘well-founded fear’. This means that a fear of being persecuted will be well-founded if there is a real chance of persecution. The Applicant does not have to show that he has personally suffered individual or systematic persecution in the past at all as the test is a prospective one.[18] Further, Mason CJ held in Mohamed v MIMA that;
[18] Ibrahim v MIMA (2000) 175 ALR 58.
…Evidence that individuals with a similar belief suffered discrimination amounting to persecution would likewise justify the conclusion that the individual’s fear was well founded even if the individual himself or herself suffers only one isolated act of persecution or none at all. There is no requirement in law that, for an application for refugee status to succeed, the Applicant must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.[19]
[19] Mohamed v MIMA (1998) 83 FCR 234, at 241-242.
43.We also refer to the low threshold test for a finding that there is a real chance of persecution to an Applicant. In Guo Wei Rong v DIEA, Foster J stated that:
The onus on the Applicant is one of establishing a possibility rather than a probability; furthermore, a relatively slight possibility will suffice provided that it cannot be characterised as merely far-fetched or fanciful. It follows that very little in the way of objective support is required to establish refugee status for a person genuinely in fear of relevant political persecution if returned to his or her own country.[20]
[20] Guo Wei Rong v DIEA (1996) 135 ALR 421.
44.A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent.[21]
[21] Chan Yee Kin v MIEA (1989) 169 CLR 379.
45.The applicant’s fear of persecution must be considered probative when determining whether he faces a real and not remote chance of persecution. This is highly relevant in an assessment of the future likelihood of his persecution. We note Professor James Hathaway’s comments:
It is unnecessary to establish past persecution in order to succeed on a claim to refugee status. Where evidence of past maltreatment exists, however, it is unquestionably an excellent indicator of the fate that may await an Applicant upon return to [his] home. Unless there has been a major change of circumstances within that country that makes prospective persecution unlikely, past experience under a particular regime should be considered probative of a future risk … The issue is not the fact of the past persecution, but rather where ‘that which happened in the past, may happen in the future.[22]
[22] James Hathaway, Law of Refugee Status (1991).
46.Accordingly, we note that it is open to the Tribunal on the to find that the past experience of the applicant is an indicator of the future risk of harm and that this risk exceeds the threshold of requisite risk as substantial possibility.
Timing of Lodgement of Protection Visa Application
47.The Delegate raised concerns in relation [the applicant]’s timing of lodgement of his claims for protection.
48.Jenni Millbank has criticised the ‘fundamental but untested assumption’ in refugee status determination that ‘claimants in genuine fear of persecution will make their claim at the earliest possible opportunity and as fulsomely as possible’,[23] noting that there are a range of factors that can impede a claimant from making his claim at the first instance.
[23] Jenni Millbank, ‘‘The Ring of Truth’: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations’ (2009) 21 International Journal of Refugee Law 1, 14.
49.We refer to the AAT’s Guidelines on the Assessment of Credibility which notes:
A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible. The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[24]
[24] AAT’s Guidelines on the Assessment of Credibility available at es/Guidelines-on-Assessment-of-Credibility.pdf.
50.We note that the applicant has clarified the reasons that led him to delay an application, namely, his lack of awareness of the RSD process, and further, his lack of awareness that a negative inference would be drawn from his delay. We draw attention to significant cultural factors, namely, the high institutional distrust for Papua New Guineans and the high cultural deference.
51.While caselaw has indicated that a delay in seeking protection may support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded,[25] given that such an inference necessarily involves a supposition of the state of mind of the applicant, correct application of this principle should also consider further factors that are relevant to the applicant’s ongoing state of mind.
[25] Subramaniam v MIMA (1998) VG310 of 1997.
52.We also note that Papua New Guinean conceptualisation of time is a cultural factor that is material to any assessment of the credibility of the applicant in determining the subjective element. We refer to the UNHCR Beyond proof guidelines which provide guidance:
Concepts of time, distance, and location may be culturally relative. Different cultures have different perceptions of time. In certain cultures, temporal concepts may not be based on units of time such as clocks and Western calendars... Even in cultures that use calendars, concepts of time may differ from those commonly used in Western society… In this regard, it is instructive that the ICTR recognized that the cultural backgrounds of witnesses may mean that they have difficulty being specific about dates, times, distances, locations; ICTR therefore stated that no adverse inference about their credibility would be drawn from reticent or circuitous answers in this regard.[26]
[26] UNHCR, ‘Beyond Proof: Credibility Assessment in EU Asylum Systems’ May 2013 available at submit that this reasoning is equally valid in considering the applicant’s concept of time in determining whether delays in making a protection visa claim be grounds for an adverse inference.
54.We refer to 1620364 (Refugee) [2017] AATA 1820 (10 October 2017) wherein the Tribunal considered a period of substantial delay for a Papua New Guinean applicant and relevantly found a lack of understand by the applicant to be a relevant considerations:
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]…. 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).
55.We submit that this finding is directly on point with the immediate matter and it is open to the Tribunal to make a similar finding.
CLAIMS FOR PROTECTION – REFUGEE GROUNDS
1. Refugee Status
56.Article 1A(2) of the Refugees Conventions 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. […]
57.We submit that [the applicant] is unable and unwilling to return to his country of reference, Papua New Guinea, due to a well-founded fear of persecution.[27]
[27] Migration Act, s5H(1).
58.[The applicant] faces a real chance[28] of persecution in Papua New Guinea involving serious harm and systematic and discriminatory conduct, because of because of:
[28] Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62.
i.His membership of the particular social group of;
a. ‘Male Members of Families Targeted for Retributive Tribal Violence”
59.We submit that ground i(a) above, falls within the definition of ‘particular social group’ (PSG) for the purposes of Section 5L of the Act. Section 5L provides that a person is to be treated as a member of a PSG (other than the person’s family) if:
(a).a characteristic is shared by each member of the group; and
(b).the person shares, or is perceived as sharing, the characteristic; and
(c).any of the following apply:
(d).the characteristic is an innate or immutable characteristic;
i.the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;
ii.the characteristic distinguishes the group from society; and
iii.the characteristic is not a fear of persecution.
‘Male Members of Families Targeted for Retributive Tribal Violence’
60.The unifying feature of this PSG is the fact that all its members are individuals who have been specifically targeted as subjects of tribal violence.
61.For reasons we have noted below, [the applicant] shares the above characteristics. [the applicant] makes the factual claims that the males in his family have all been targeted for retributive violence.
62.We therefore submit that the above is PSG for the purposes of Section 5L of the Act.
63.[The applicant] is unable to take reasonable steps to modify his behaviour to avoid persecution in his home area of Papua New Guinea, or in other areas of Papua New Guinea, because the reasons he faces persecution are innate or immutable characteristics.[29]
[29] Ibid, s5J(3); Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
64.We submit that [the applicant] faces a ‘real chance’ of suffering serious harm amounting to persecution if forced to return to Papua New Guinea. While a forward-looking test must be applied in the assessment of his claims,[30] [the applicant]’s previous experiences of violence and systemic harm both personally and to members of his family lend probability to the likelihood of future risk.[31]
[30] Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22.
[31] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 575.
65.As the UNHCR have noted, ‘[t]here is no universally accepted definition of persecution’.[32]However, it will include threats to life or freedom (on account of a person’s Convention characteristics) or to ‘[o]ther serious violations of human rights’.[33] Various lesser forms of harm, ‘not in themselves amounting to persecution’, may amount to persecution in their cumulative effect.[34]
[32] UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, January 1992, HCR/IP/4/Eng/REV.1, available at: [51] (“UNHCR Handbook”).
[33] Ibid.
[34] Ibid at [53].
66.We refer to 1620364 (Refugee) [2017] AATA 1820 (10 October 2017) wherein the Tribunal accepted that a pattern of targeted payback was capable of constituting a convention claim.
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…
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…
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…
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.
67.In this case the Tribunal held that once it was substantiated that the Applicant did indeed hold a well-founded fear of harm as a consequence of clan-based conflict.
Country information
PSG - ‘‘Male Members of Families Targeted for Retributive Tribal Violence’
68.[The applicant] claims that he will be subject to harm on the basis of his inclusion in the particular social group of ‘Male Members of Families Targeted for Retributive Tribal Violence’.
69.Clan violence has been consistent and widespread fixture in Papua New Guinean culture. Hundreds of people are killed every year in tribal fights in Papua New Guinea. Reports have estimated that around 20% of the population is affected by ostensibly ‘tribal’ violence, with a marked concentration in highland regions.[35] Guns have now supplanted more traditional weapons in such conflicts, thus raising their stakes and increasing their deadliness. In 2011, IRIN reported:
[35] Dorney, S. (1990) Papua New Guinea: People, politics and history since 1975. Sydney: Random House.
Clan violence is widespread in Papua New Guinea (PNG), where arguments over women, pigs and land can easily spiral into murder, mayhem and civil conflict.
In the volatile Eastern Highlands Province, an estimated 400 people die each year in violence - mostly sparked by land disputes.
During one dispute that lasted 16 years over a coffee plantation in Daulo District, houses were regularly set ablaze and crops destroyed. Six people were killed…
Once hostilities begin, payback can keep conflict alive for decades. Disputes between landowners and the owners of a copper mine on the island of Bougainville, east of the country's mainland in the Solomon Sea, escalated into 10 years of civil war and some 15,000 dead and another 70,000 displaced. The conflict ended in 1999…
Nonetheless, some locals say nothing can quell the thirst for revenge. "I don't think anyone should be involved in mediating peace for them," said Agnes Inape, a women's rights activist in Goroka, capital of Eastern Highlands Province. "If you force them to make peace, they say 'We haven't settled the score'. They want revenge," she said. "You can spend so much money on trying to make peace, but that money is not enough to compensate for the anger, the heartache that people are going through."[36]
[36] IRIN, Papua New Guinea: Tackling clan conflict, 7 January 2011, available at: [accessed 2 February 2020].
70.We note that Chimbu province is in the Eastern highlands. He literature is suggestive that the Chimbu region is particularly prone to violent tribal conflict.
71.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).[37] (our emphasis)
[37] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.36 – 2.38.
72.We observe that it is central to our client’s claim that the threat of harm he experienced in Chimbu has affected him in Port Moresby; a point that the Delegate incorrectly considered to be implausible.
73.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.[38]
[38] United States Department of State, Country Reports on Human Rights Practices for 2016 – PNG, 3 March 2017, section 7, p22.
74.In 2014, a Report by the UNHCR Special Rapporteur noted that tribal violence most commonly took the form of targeted payback killings:
Traditionally, tribal violence occurred in the villages. However, today, it has found its way into the cities as well. Fights between members of different tribes occur regularly and may be triggered for a variety of reasons, including sorcery and witchcraft, land and territory-related issues, jealousy and inequality. Payback violence is regularly cited as being linked to tribal disputes.
Tribal violence has become increasingly violent over the years as individuals have greater access to firearms…
While in some cases, individuals involved in tribal fighting have been prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear that they will be subjected to payback if they testify.[39]
[39] Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, on his mission to Papua New Guinea (3 to 14 March 2014).
75.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…[40]
[40] 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,
76.In this regard, we note that the findings of the World Bank support the claims of the applicant in regards to his extended liability for the historic murders of the opposing clan. The Report continues:
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. [41]
[41] Ibid.
77.In this regard, we note that this country information is consistent with the Applicant’s claims that the tribal conflict was re-ignited by the 2002 elections.
78.We refer to the working paper ‘Payback Killings and the Transmission of Norms in the New Guinea Islands: Observing the Tip or the Iceberg?’ issued by Shaun Lacom of Cambridge University who noted the following in relation to the Payback norm:
In much of Papua New Guinea, payback is considered a legitimate punishment and is still practiced in both urban and rural areas….
Under customary law, a serious customary wrong such as homicide (often it does not matter if it was accidental or deliberate) can be punished by a payback killing…
It is also noteworthy that of those who agreed with the use of payback, slightly more agreed with killing a member of the offender’s family rather than the actual offender. These responses highlight the fact that the ‘traditional’ customary norms of strict liability and group liability still hold some currency in Papua New Guinea.[42]
[42] Shaun Larcom, ‘Payback Killings and the Transmission of Norms in the New Guinea Islands: Observing the Tip or the Iceberg?’ Department of Land Economy Working Paper: June 2013.
79.In Motor Vehicles Insurance Ltd v Manduru [2018] PGSC 93; SC1750 (18 December 2018), the Supreme Court of Papua New Guinea made the following comments that underscored the rationale behind the family liability for a payback.
“Whether a person killed is a relative or any enemy has special significance in Papua New Guinea. The notion of payback is still practised in many parts of the Highlands. The significance is that where a person other than a relative is killed, the victim’s relatives would pay back by seeking to kill a member of the offender’s family....In a sense, a killing of a relative is self inflicting in that, a killer may lose a warrior, a worker or contributor to bride price or even a helper...”
80.We note that this is reflected in the pattern of the applicant’s family being targeted. We note that despite the fact that the principle culprit for the initial crime ([Mr C]) has perished, retributive justice is still unsatisfied.
81.This is reflected in the wider literature, in ‘Payback: The Logic of Retribution in Melanesian Religions’, academic G. W. Trompf notes:
It was better to merit post-mortem prestige by dying bravely than to endure shame among the living as a coward. Overall the concern to eliminate foes was indistinguishable from paying bad people who had been killing one's 'fathers' and brothers' over the years, although at no time was there stronger urge to take life than when the enemy seemed to have committed a 'fresh' act of aggression. When a kinsman was suddenly 'a missing part removed from the whole' (among the Siassi Islanders), it was as if a hand had been wrenched from the body' and male members of his family often had but two alternatives: to meet their moral obligation by an atoning payback or to face ostracism. For the Chimbu, it has been argued, one even falls 'guilty' (or at least under heavy liability) until one repays the obligation to a clansman who has not had his slaying avenged. Thus no Melanesian society could afford to shun violence…[43] (In-text citations removed)
[43] G.W. Trompf, ‘Payback : the logic of retribution in Melanesian religions’ (1994) Cambridge, UK ; New York, NY, USA : Cambridge University Press, 1994.
82.We note the specific cultural factor amongst the Chimbu that obligates clanspeople to execute retribution. We note that this is consistent with the wider literature on the Chimbu predisposition towards resolution of grievances through violent payback.
83.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.[44]
[44] Catherine Graue, ABC News, “’Spears to semi-automatics’: Papua New Guinea’s tribal conflicts become more violent”, 3 June 2017, automatics-pngs-highland-wars-become-more-violent/8580494.
84.Mid-2019 saw a steep outbreak of tribal violence and at least 24 people were killed in Hela province in the west of the country. This is due in a large part to the provision of high-powered weapons that has led to a marked change in the way this conflict has unfolded.
85.The Guardian provided further detail, noting that these killings were specifically characterised as payback killings.
The brutal deaths of about 30 women and children in Papua New Guinea’s highlands amount to the “worst payback killing” in the country’s history, the police minister has said.
Following a one-day trip to the area, Kramer said it appeared warring clans had taken the rare step of targeting women and children after the elderly mother of a tribe leader was killed in an earlier raid.
He described “the horrific killing of 23 women ([two] of whom were pregnant) and [nine] children” as the “worst payback killing in our country’s history”.[45]
[45] Luke Henriques-Gomes, Papua New Guinea massacre of 30 women and children is 'worst payback killing' in country's history, The Guardian, Mon 15 Jul 2019 available at children-is-worst-payback-killing-in-countrys-history.
86.We submit that the specific facts in this matter is strongly supportive of the norm that liability for retributive payback extends to members of the family. (We note that the norm that women and children not be targeted has been violated in this instance.)
87.On 7 January 2020, the Sydney Morning Herald reported:
It is often said that tribal fighting in the Papua New Guinea Highlands is part and parcel of the socio-cultural fabric of the region.
With a history stretching back hundreds of years (if not more), it can be seen simply as an indivisible feature of the Highland way of life. While to some extent true, tribal fighting in the last 30 years has become more akin to conventional warfare on the battlefields of the Middle East or sub-Saharan Africa than the pitched battles using the bows and arrows that characterised pre-colonial confrontations in the Highlands…
Bouts of tribal fighting to the outside observer are as unpredictable as the weather, some with roots going back many generations.[46]
[46] Sydney Moring Herald, A violent, centuries-long war on Australia's doorstep is getting deadlier, 7 January 2020, available at australia-s-doorstep-is-getting-deadlier-20200106-p53pbb.html.
88.Tellingly, the International Committee of the Red Cross is working in Papua New Guinea to try to make tribal fights less deadly, by talking with clan leaders about a return to the traditional rules that limit who can be targeted.[47] However, this remains a point that serves to underscore that retributive models of justice are deeply entrenched in Papua New Guinean culture.
[47] International Committee of the Red Cross, The old ways are gone: Papua New Guinea’s tribal wars become more destructive, Jun 22, 2017 available at gone-papua-new-guineas-tribal-wars-become-more-destructive-ade38205196f.
89.We submit it is open to the Tribunal to find that the Country Information amply supports the applicants claims of harm.
State Protection
90.We submit that [the applicant]’s country of origin Papua New Guinea would be unable or unwilling to protect him and his family members if they returned, and therefore that effective protection measures are not available to [the applicant] in Papua New Guinea.[48] Under policy, consideration must be given to ‘[h]ow the governing authorities of the State in question treat persons in their country’ and ‘how the police, judicial and allied services function’:
[48] Migration Act, ss5J(2), 5LA.
A reasonably effective police force is one that is able to respond in a reasonable time but need not cover every situation. An impartial judicial system is one that applies the law in a consistent manner and does not apply differing standards for a reason under s5J(1)(a).[49]
[49] Department of Immigration and Border Protection, Policy and Advice Manual (PAM), ‘Refugee Law Guidelines’, Chapter 9, Effective Protection Measures, 12 May 2017.
91.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.[50]
[50] MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]
92.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:
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.[51]
[51] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.39.
93.DFAT further elaborates, stating:
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.[52]
[52] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 5.6.
94.The Applicant submits that significant police tolerance exists for ‘payback’. We submit this accords with country information set out above about police inaction with respect to tribal violence, particularly in remote areas. Moreover, both country information and review of Papua New Guinea Supreme Court Decisions indicate a striking level of permissiveness towards clan payback violence.
95.In regards to state protection, Papua New Guinea has one of the lowest police-to- population ratios in the world.[53] The US Department of State reported that "in many cases police lacked sufficient personnel or resources to prevent attacks or respond effectively" to societal violence during 2015.[54]
[53] "Papua New Guinea 2016 Crime & Safety Report", Overseas Security Advisory Council, 11 July 2016, p.9,.
[54] Country Reports on Human Rights Practices 2015 — Papua New Guinea", US Department of State, 13 April 2016, Section 1.d,
96.As surveyed above, there are a number of reports 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. The country information also suggest that police corruption is widespread.[55]
[55] Human Rights Watch, Human Rights Watch World Report 2017, 13 January 2017, p.475, also refer to 1620364 (Refugee) [2017] AATA 1820 (10 October 2017) wherein the Tribunal held that in relation to tribal warfare, the state of PNG was failing to meet the requisite level of protection.
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] HCA 18; (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 Human Rights Watch, Human Rights Watch World Report 2017, 13 January 2017, p.475, 1620364 (Refugee) [2017] AATA 1820 (10 October 2017).

98.We submit that the Tribunal should not be 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.[57]
[57] [2004] HCA 18; (2004) 222 CLR 1.

Real Chance of Persecution in All Areas of Papua New Guinea

99.We submit that it would not be possible for [the applicant] to relocate within Papua New Guinea to avoid persecution as there is a real chance that he will face persecution in all areas of Papua New Guinea.[58]
[58] Migration Act, s5J(1)(c).
100.We draw attention to the fact that DFAT assesses that Tribal violence also extends outside the traditional tribal areas.
Internal relocation in PNG is generally possible – people can and do regularly migrate to big cities, either in search of economic opportunities, or to escape tribal and other violence or natural disasters. A credible international source estimated that there are as many as 100,000 internally-displaced persons in PNG. As many as 50 per cent of Port Moresby’s population comprises of internal migrants residing in shanties. Those who relocate to Port Moresby and other major cities find very high unemployment – 80-90 per cent in the formal sector in Port Moresby – and very high levels of crime, including tribal fighting.[59]
[59] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 5.6.

101.DFAT also draws attention to the fact that relocation outside of Port Moresby is equally fraught and that tribal feuds can extend to payback killings in the major city This latter point has significant and direct ramifications for the Applicant who specifically fear a targeted killing in Port Moresby.
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.[60]
[60] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 2.37.

102.In a 2015 report, Minority Rights Group International states 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.[61]
[61] State of the World’s Minorities and Indigenous Peoples 2015 – Papua New Guinea, Minority Rights Group International, 2 July 2015 - 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.’
104.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.’[62]
[62] 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,
105.This latter point has significant and direct ramifications for the Applicant who specifically fears a targeted killing in Port Moresby. The DFAT report specifically underscores the capacity for regional violence to be transferred to the city, noting in relation to relocation in general:
However, logistical and security issues make internal relocation within PNG more difficult. In many instances, community access to provincial and major capital centres is hampered by a lack of effective and trafficable road transport infrastructure. Travelling overland necessitates passing through other tribal areas, which can have security implications... Tribal feuds can and have relocated from their original location - there have been cases of payback killings carried out in major cities.[63]
[63] DFAT Country Information Report Papua New Guinea, 10 February 2017 at 5.7.
106.The Applicant has provided evidence indicating that he has attempted to relocate to Port Moresby but was still subject to the threat of a ‘payback’ killing.
107.We refer to 1620364 (Refugee) [2017] AATA 1820 (10 October 2017) wherein the Tribunal addressed a similar fact set as the immediate matter and concluded the following:
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.[64]
[64] 1620364 (Refugee) [2017] AATA 1820 (10 October 2017).
108.We draw particular attention to the finding of the Tribunal noting that the ‘number of years’ the Applicant lived in Port Moresby did necessitate that relocation there was a safe option. In drawing this conclusion, the Member relied on the above country information and specific cultural norms to conclude that given the irrationality of the agents of persecution, a period of safety in Part Moresby was not indicative of ongoing safety sufficient to cause the risk of harm to the applicant to be diminished.
109.We note that this decision relevantly distinguished the position of applicant from the position of other targeted members of the same family who had access to specific tribal protection from other tribes by nature of their marriage into that clan.
110.Consequentially, we submit that it is open to the Tribunal to be satisfied that relocation within PNG generally is not a feasible and that should the Applicant relocate to Port Moresby, he would be equally vulnerable to serious harm and payback killings.
GROUNDS FOR PROTECTION – COMPLEMENTARY PROTECTION
111.In the event that [the applicant] is found not to be a refugee, we submit that his circumstances nonetheless trigger Australia’s non-refoulement obligations,[65] in that the harm feared by, [the applicant] were he to return to Papua New Guinea, amount to ‘significant harm’ as defined by Section 36(2A) of the Act, whether for Section 5J(1)(a) reasons or otherwise.
[65] Migration Act s36(2)(aa).
112.Under section 5J(5) of the Act (a non-exclusive definition of ‘serious harm’), threats to a person’s life or liberty, significant physical harassment of a person, significant physical ill-treatment of a person, or significant economic hardship, denial of access to basic services or denial of capacity to earn a livelihood of any kind (where these forms of treatment threaten a person’s capacity to subsist) will all amount to ‘serious harm’.[66] This harm, where inflicted systematically[67] and discriminatorily[68] for reasons noted in Section 5J(1)(a) of the Act, will hence amount to persecution.
[66] Migration Act, ss5J(4) and (5); Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610 per French CJ, Kiefel, Bell and Keane JJ (which considered ss91R(1)(B) and (2) but the reasoning is equally applicable to ss5J(4)(b) and (5)).
[67] Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1; SZTEQ v Minister for Immigration and Border Protection (2015) 321 ALR 44 at [72].
[68] Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 233 per Brennan CJ and 258 per McHugh J; Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565 at 568 per Burchett J.
113.There are certain circumstances in which there is taken not to be a real risk that an Applicant will suffer significant harm in a country. These arise where it would be reasonable for the Applicant to relocate to an area of the country and where there would not be a real risk that the Applicant will suffer significant harm; where the Applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the Applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the Applicant personally: s.36(2B) of the Act.
114.[The applicant]’s claims for complementary protection clearly arise from the materials presented in his application for protection (as discussed in detail above).
115.The country information cited above clearly demonstrates as a male member of a Chimbu clan targeted for retributive violence, [the applicant] is at risk of significant harm as a foreseeable consequence of return to his receiving country.
• arbitrary deprivation of life - risk of targeted killing; risk of widespread conditions of violence and systematic breakdown of law enforcement;
116.The risk of harm faced by [the applicant] personally is not one faced by the population of Papua New Guinea generally – he is at risk of differential treatment based on his personal circumstances.[69]
117.We submit that internal relocation is not an option for [the applicant] to escape the harm he fears with respect to complementary protection for the same reasons outlined above (with respect to the Section 5J(1)(a) grounds as described above).
118.We further submit that it would not be reasonable for [the applicant] to relocate to an area of Papua New Guinea where there would not be a real risk that he would suffer significant harm for the same reasons outlined above (with respect to the Section 5J(1)(a) grounds as described above). What is reasonable, in the sense of “practicable” will depend upon the particular circumstances of the applicant, and the impact upon [the applicant] of relocation within his home country.[70]
119.We submit that it is clear that [the applicant] cannot obtain from the Papua New Guinean authorities a level of protection such to reduce that risk of harm,[71] nor does he/she have a right of protection from a third country.[72]
CONCLUSION
120.We submit that [the applicant] is a non-citizen in respect of whom Australia has protection obligations because he is a refugee, or, alternatively, because there is a real risk he will suffer significant harm if removed from Australia to Papua New Guinea.
121.We submit that [the applicant] satisfies all relevant criteria for grant of a Protection (Subclass 866) visa.
[69] Migration Act, s36(2B); see, e.g., SZSRY v MIBP [2013] FCCA 1284 (Driver J).
[70] SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18 per Gummow, Hayne and Crennan JJ at [24].
[71] Migration Act, s36(2B).
[72] Ibid, s36(3).
Country of reference/ receiving country

The applicant claims to be a PNG national. Based on the copy of his passport provided to the Department of Immigration and Border Protection (the Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Hearing:
The applicant appeared before the Tribunal on 19 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin and English languages. The applicant was accompanied by his Representative.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Papua New Guinea. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Papua New Guinea. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Papua New Guinea.
The Tribunal discussed his claims as set out above and as summarised in the Delegate’s Decision. It confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
The Tribunal discussed with the applicant the documents that he had submitted prior to the hearing.
The Tribunal noted that the applicant had presented a medical report that confirmed that he was missing two [teeth] and had multiple scars on his [Body Part 2] and on his [Body Part 3]. The report also included an x-ray which showed a remnant metal foreign body lying lateral to the [Body Part 4] which the medical practitioner concluded was a stable old bullet injury.
The Tribunal noted that the report appeared to corroborate the types of injuries the applicant had claimed to sustain, but did not provide any opinion as to when they were suffered or by what means they were inflicted.
The Tribunal also discussed the Statutory Declaration tendered from [Mr A] who is a [Occupation 1] in Papua New Guinea. The Tribunal noted that the statement made stated that the applicant had sustained severe head injuries and a broken tooth at the hands of tribunal enemies at [a market] which almost cost him his life. The Declaration also stated that the tribal differences are still tense and unresolved to date.
The Tribunal again noted that the Declaration supported the applicant’s claims as to the injuries sustained and asked the applicant whether [Mr A] was present at the time of the attack upon him. The applicant replied that he was not, but that he had told [Mr A] of the circumstances of the attack around that time. He stated that [Mr A] attempted to bring peace to the warring tribes. The Tribunal again discussed the limited weight it could give that Statutory Declaration on the basis that the information provided in it was told to the Declarant by the applicant himself.
The Tribunal noted that the applicant had no other documentary evidence in support of any of his claims
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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 himself or 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 him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal had grave concerns about the lack of any corroborative evidence of the applicant’s claims. It had discussed with the applicant and his Representative the relative weight that the Tribunal could put on both the medical report and the Statutory Declaration of [Mr A], having outlined the concerns the Tribunal had in relation to each.
The Tribunal also expressed its concerns that it had in relation to the number of visits that the applicant had made to Australia and perhaps more importantly, the number of times he had returned to Papua New Guinea, and all in the context of the applicant not having made an immediate claim for protection. The Tribunal had noted that the applicant had been in Australia on three separate occasions during 2016 and had only made his Protection Visa application within a few days of the expiry of his Tourist Visa in July 2016.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal discussed these concerns with the applicant at length. He provided quite graphic detail of his previous visits to Australia, the circumstances of the visits and the conditions under which he lived whilst in Australia. He stated that he lived in boarding houses and backpacker accommodations until he ran out of money and then invariably lived rough. The people he associated with on the street were homeless people and were not refugees. He explained that he had no exposure to Visa processes as in each instance of his visits to Australia, they were arranged and paid for by his sister. He stated that it was only on his most recent visit to Australia that he befriended some other people from Papua New Guinea who put him in touch with RAILS, who then advised him in relation to his rights.
The Tribunal tended to accept the applicant’s explanations as plausible and the Tribunal found the applicant generally believable in this respect.
Turning to the issue of credibility generally, the Tribunal was impressed by the applicant as a witness. After initial nervousness, the applicant became relaxed and the Tribunal found his responses to be both spontaneous and fulsome.
The Tribunal had discussed with the applicant and his Representative its concerns about having not one scintilla of corroborative evidence in support of the applicant’s claim. The Representative explained that he had only been retained very recently. The applicant explained that he had attempted to obtain a copy of his report to the police, but was advised that it was too long ago. The Tribunal discussed why the applicant had not considered obtaining statements from either his sister or any of the people with whom he claimed to have lived with whilst living out of his suitcase in Papua New Guinea for over two years. The applicant advised that it had not occurred to him and his Representative maintained that such evidence was normally regarded by Tribunal members as having little weight. The Tribunal agreed that may be the case in other Tribunals and also agreed that it would probably put little weight on a statement obtained from a family member after the completion of the hearing itself.
In the absence of any such corroborating evidence, the Tribunal was faced with a simple decision - did it believe the applicant’s evidence and was it persuaded that his claims were genuine?
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[73]
[73] Guidelines on the Assessment of Credibility (July 2015) Available at >
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[74]
[74] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Representative had forwarded to the Tribunal a very detailed and elaborate submission. The Tribunal has set that submission out elsewhere in this decision. The Tribunal was minded to accept the submission in relation to a particular social group and acknowledges that Country Information referred to below would support a finding that a person making the claims that the applicant is making ought properly be considered as a member of the particular social group of male members of families targeted for retributive tribal violence. Accordingly, the issue for the Tribunal was whether it could conclude that the applicant was such a person.
The Tribunal had invited the applicant to recount his formative years in Papua New Guinea and his account was in accordance with his claims set out in his Statutory Declarations. He spoke in vivid detail of the election processes in Chimbu Province in 1992, 1997 and 2002. He provided a particularly detailed account of the circumstances in which he was shot in the [Body Part 1], describing that he was running away from a conflict at the time.
The applicant had provided a family tree to the Tribunal to assist it to understand all the relevant players within his immediate family. Without reference to the document, the applicant relayed to the Tribunal how each member of that family related to each other and the role that each played during the tribal battles. He spoke of his cousin, [Mr C], as being the family member that has probably brought such grief upon the rest of his family by virtue of his retaliation to his house being burned. The applicant spoke in detail of the mass killings that cousin [Mr C] had undertaken over the years and then spoke very matter-of-factly about the revenge that was taken out upon numerous members of his own family. He spoke of the targeted killings of his cousins [Mr D] and [Mr E] and of his [Uncle F]. Given an opportunity to possibly exaggerate his family losses, the applicant instead disclosed that his [Uncle G] and his own parents died of natural causes between 1993 and 2000.
When asked to detail in chronological order the deaths of each of his family members, without hesitation, the applicant detailed how one uncle and one cousin were killed before the applicant had been shot and before he left and that the second cousin was killed after the applicant had left the village. He advised that cousin [Mr C] was himself killed in 2018.
The Tribunal discussed with the applicant why it was that only he appeared to be the target of the revenge killings and not any of his own brothers. He then went through the living arrangements of each of his brothers in some detail, describing who they were married to and the clans they had since joined and the villages in which they now lived. He then provided a detailed account of how those clans would close ranks around his brothers and protect them. The applicants stated that after 2002, none of his immediate family members were left in the village. He stated that between 2002 and 2012, the interclan feud continued and he understood that people were still being killed. He stated that during this time, he lived and worked in Port Moresby. He believed he was relatively safe in Port Moresby.
The applicant provided an account of the circumstances in which he met one of the enemy clansmen in the [market] in Moresby in 2012. He stated he was quite shocked to see him and was immediately fearful. Again, in some detail, he elaborated on the circumstances of him trying to leave the market and how he sensed he was being followed. He then spoke of the beating he received and the references the clansmen made to his cousin, [Mr C]. He spoke of being rescued and being taken to the local hospital. He then spoke of his visit to a police station, giving quite detailed instructions as to where the police station was. He spoke of how he received no assistance from the local police.
With some emotion, he spoke of his wife’s inability to live with him under the fear and threat of harm from the clansmen. He spoke of that day he lost his wife and children when they moved away.
It was during a discussion with the applicant about how he managed to live and work during the period of 2012 to 2014 that the Tribunal expressed it had some concerns about the plausibility of the applicant’s explanations as to how he moved around Moresby for two years living with different friends and family whilst purporting to be in hiding. He talked about having a number of casual jobs labouring and the Tribunal queried how he could be both in hiding and working in the open at the same time. He explained that his workmates were his friends who invariably sourced the jobs for him and looked out for him.
The Tribunal asked the applicant, perhaps incredulously, how he could manage to prevail upon family and friends for over 700 nights, moving between them and staying with each on average for only three or four nights. The applicant seemed surprised by the question and stated, again rather matter-of-factly, that such living arrangements and constant movement were not unusual for people in trouble or without a fixed place to live. He said the people who put him up were friends who knew about the issues he was having and invariably those friends were able to keep him informed of what the enemy clansmen were saying and threatening. He described the whole circumstance as one of truly living out of a suitcase.
By and large, the applicant’s evidence during the hearing was consistent with his two previous Statutory Declarations and his claims. Notwithstanding this, the Tribunal still had its doubts, but in the face of the extraordinary detail contained in the recounts of the applicant’s circumstances and various events, the Tribunal is prepared to give the applicant the benefit of those doubts that it has. As previously stated, the Tribunal was impressed by the clarity of the applicant’s evidence, its spontaneity and the sheer detail of his recounting of events. The Tribunal also gives the applicant credit for not exaggerating evidence when, in the circumstances, it would have been quite easy for him to have done so.
The Tribunal also considered the plethora of Country Information it obtained internally and the Country Information provided to it by the Representative.
The Tribunal acknowledged that PNG was generally unsafe in some regions, and that it was aware of tribal unrest. It acknowledged the following country information about tribal feuds in PNG – the same country information the delegate discussed with him during his interview. It discussed a summary of the following information from the DFAT Report:
"Tensions between and within PNG's hundreds of different groups occur 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 if they testify."[75]
[75] DFAT Country Information Report PNG", Department of Foreign Affairs and Trade (DFAT), 10 February 2017

In its 2015 Country Report on Human Rights Practices for Papua New Guinea, the US Department of State noted that ‘[s]ocietal violence, particularly among tribes, was commonplace' in that country.[76]
[76] Country Reports on Human Rights Practices 2015 - Papua New Guinea, US Department of State 2016, 13 April 2015, Section 1.d.
DFAT also noted that:
"’Payback' is an act of retaliation that is usually carried out when one group has been harmed by another. In many cases, the perpetrator pays financial or other compensation to the victim or their family... The practice of payback can lead to impunity from mainstream court processes. Many payback cases are not reported, and witnesses are often reluctant to testify out of fear of retaliation from within the group. Traditional compensation via payback is often preferred because it produces immediate benefits and prevents a cycle of escalating 'tit-for-tats'."[77]
[77] DFAT Country Information Report PNG", Department of Foreign Affairs and Trade (DFAT), 10 February 2017
In regards to state protection, Papua New Guinea has one of the lowest police-to-population ratios in the world.[78] The US Department of State reported that "in many cases police lacked sufficient personnel or resources to prevent attacks or respond effectively" to societal violence during 2015.[79] In addition, Freedom House stated that the RPNGC are "largely ineffective in curbing mob violence, tribal warfare, and other crimes."[80]
[78] "Papua New Guinea 2016 Crime & Safety Report", Overseas Security Advisory Council, 11 July 2016, p.9,
[79] Country Reports on Human Rights Practices 2015 — Papua New Guinea", US Department of State, 13 April 2016, Section 1.d.
[80] Ibid.
Again, the Tribunal acknowledges the Country Information and that DFAT is aware of cases where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby.
In light of the Country Information above, which the Tribunal accepts, and the acceptance of the applicant’s evidence as provided to the Tribunal, the Tribunal accepts the applicant’s claim and the Representative’s submission as to the applicant being a member of the particular social group of male members of families targeted for retributive tribal violence.
The Tribunal also accepts that the applicant’s previous experiences of violence and harm, both personally and to members of his family, lend probability to the likelihood of future risk.
In light of the Country Information above and that DFAT is aware of cases where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby, the Tribunal finds that the real chance of persecution relates to all areas of PNG and effective protection measures are not available to the applicant in PNG.
The Tribunal is satisfied that the applicant cannot take steps to modify his behaviour so as to avoid a real chance of persecution in PNG as a modification would conflict with a characteristic that is fundamental to his identity or conscience.
Accordingly, the Tribunal finds that he has a well-founded fear of persecution for reason of him being a member of a particular social group of male members of families targeted for retributive tribal violence in PNG.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, and for the reasons set out above, the Tribunal accepts that if the applicant returns to Papua New Guinea now or in the foreseeable future that there is a real chance he will face serious harm for reasons of him being a member of a particular social group of male members of families targeted for retributive tribal violence in Papua New Guinea. The Tribunal accepts that he has a well-founded fear of persecution for reason of membership of a particular social group.
Conclusion: Complementary Protection
As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea.
Overall conclusion:
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Michael Hawkins
Member

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

1999).

Canada (Minister of Employment and Immigration) (1993) (Federal Court of Canada).

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