1721044 (Refugee)

Case [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

  1. 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).

  2. 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

  3. 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.

  4. Section 36(2)(a) provides that a criterion for a protection…

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1721044 (Refugee) [2020] AATA 2231
Case
[2020] AATA 2231
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa application of a male applicant from Chimbu Province, Papua New Guinea. The applicant claimed to fear persecution from enemy clans due to ongoing tribal conflict and a history of violence stemming from a 1992 election dispute. He alleged he had been shot in 2002 and beaten in 2012 by members of these clans, and that the tradition of "payback" meant this conflict would continue through generations. The applicant also contended that police protection in Papua New Guinea was unreliable due to corruption and that relocation within the country would be ineffective.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, and if not, whether he was entitled to complementary protection under section 36(2)(aa). This involved assessing the applicant's claims of persecution for reasons of membership in a particular social group, the plausibility of his past experiences, and the availability of effective protection in Papua New Guinea. The Tribunal was required to consider the applicant's personal history in light of extensive country information regarding tribal violence, the practice of "payback," and the limitations of state protection in Papua New Guinea.

The Tribunal found that the applicant's detailed account of his experiences, including specific instances of violence against himself and his family, was credible. It accepted that the applicant belonged to the particular social group of male members of families targeted for retributive tribal violence. Considering the country information, which indicated widespread tribal unrest, the increasing violence due to access to firearms, and the ineffectiveness of state protection, the Tribunal concluded that there was a real chance of persecution for the applicant throughout Papua New Guinea and that effective protection measures were not available. Consequently, the Tribunal determined that the applicant had a well-founded fear of persecution and was a refugee under section 36(2)(a) of the *Migration Act*.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth). As the applicant was found to meet the refugee criterion, the Tribunal did not need to consider his eligibility for complementary protection.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 2017In 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 2017In 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 CriterionConsidering 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 ProtectionAs 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).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Michael HawkinsMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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). 00PUBLIC0.pdf?sequence=1&isAllowed=y.

Ratio Decidendi

Legal Principle Established

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.