1727239 (Refugee)

1727239 (Refugee) [2021] AATA 3221 (9 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1727239

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Brendan Darcy
DATE:9 July 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 09 July 2021 at 9:31am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – race – tribal violence – political opinion – electoral violence – fear of killing – applicant’s relatives attacked – supply of firearms – payback – return visit to Papua New Guinea – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91
Migration Regulations 1994, Schedule 2
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIAC v SZQRB (2013) 210 FCR 505
MZYXS v MIAC [2013] FMCA 13
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 the Independent State of Papua New Guinea / Independen Stet bilong Papua Niugini (or PNG), applied for the visa on 12 June 2014 and the delegate refused to grant the visa on 9 October 2017.
The applicant appeared before the Tribunal on 12 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from a witness, [named], who claimed to be a long term friend of the applicant.
The delegate refused the applicant a protection visa on the basis that the applicant’s circumstances about tribal violence does not meet the threshold requirements of a real chance of serious harm or a real risk of significant harm arising from tribal violence.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
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 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.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born in Enga Province on [date].
On departmental file is a copy of the applicant’s expired passport indicating he was born in [Town 1] in Enga Province.
The applicant first arrived in Australia [in] August 2013 while holding a [visitor] visa. The applicant departed [in] November 2013 and remained in PNG for four months before the applicant returned for the second time [in] March 2014. The applicant’s visitor visa ceased on [a day in] April 2014.
The applicant lodged a valid application for a Class XA Subclass 866 protection visa on 12 June 2014 and was granted an associated bridging visa.
The applicant’s written clams in a typed statement as the reasons he is owed Australia’s protection obligations were attached to the protection visa application form. A summary of those claims are below:
·The applicant fears harm in PNG because of a tribal dispute between his tribe, [Tribe 1], and the [Tribe 2];
·The applicant completed [school grade] in [year].
·ln 2007 during the general election of Papua New Guinea, supporters of a party parliamentary leader were attacked and killed. This was believed to be a payback killing for another election related killing few years ago when a candidate's supporters allegedly shot a man and [a partner] (who was the applicant's [Relative A]) at [a location], and threw their bodies into the [named] River;
·The election related fights escalated within warring tribes and many schools were burnt or shut down. Mothers and children were mostly affected. Food crops, cash crops and livestock were lost. Families were displaced. Many high-powered guns were used, and many lives were lost. Police resources were minimal compared to thousands of tribesmen armed with all sorts of weapons;
·Two of the applicant's cousins and five clansmen were killed.
·The applicant's father took the family to Port Moresby.
·After they arrived in Port Moresby his family supported the applicant's further study. The [number] years of study was not that easy due to stress, pressure and fear of enemies. As payback killings are common in Papua New Guinea, the applicant and his family were very cautious;
·After graduating from university, the applicant obtained employment with [Employer 1].
·During his [number] years with the company the applicant took care of the school fees for his younger siblings and other family expenses;
·The fighting in [Town 1] started again. More than 6-7 tribes and clans were involved in tribal fights. There have been 44 death in the last 6 months alone. This is 21 deaths on the applicant's side ([Tribe 1]) and 15 deaths on the other side ([Tribe 2]);
·False rumours have been sent to the applicant's enemies ([Tribe 2]) that he was a sole sponsor and supplier of guns, ammunition and money through the [employer] he was working for. He has been threatened, monitored and an attempt made to kill him. Tn stead of kill ing the applicant they shot his [relative] 20m from their house;
·After this near miss the applicant decided to resign from the company that he adored and leave the family he loved to seek a new life in Australia
The applicant also indicates that the applicant can speak, read and write English, Pidgin (or Tok Pisin) and Enga (a local indigenous language); that his religion is Christian and that he has never married or been in a de facto relationship at the time of application.
The forms submitted at the time of application also indicated that his occupation was as an [occupation 1] and that he had worked for the [Employer 1], as [a related role] between 2011 and August 2013.
The applicant attended an interview before a departmental official on 2 May 2016 and made the following relevant additions and amendments to his claims:
·     Tribal violence still prevails in Enga and is ongoing. It is made worse by the prevalence of modern weapons such as machine guns; The applicant had to work to pay compensation for tribal violence. If he did not pay his life was at risk of harm;
·     The last place he was living in PNG was in Port Moresby. He had been there for about 2½ years. He went back and forth to his home village for his holidays and other family commitments. The larger town near his village is [Town 1] and the village is [Village 1];
·     His daughter's name is [name] and lives with her biological mother. The applicant was never married to his daughter's mother;
·     The applicant’s parents have lived in Port Moresby for ten years but they visited the village where they grow food;
·     The applicant’s [family members and their locations];
·     The social obligation, including for compensation, is greater for the applicant because he is educated and working;
·     When he was last in PNG one of his cousins, [Cousin A], who assisted lawyers was killed by another tribe out of jealousy or frustration. People feel more, it was claimed by the applicant, manly if they attack someone who can make a difference to the tribe. This scared (freaked out) the applicant. Nothing else happened during his return to PNG that makes him fear returning.
·     The applicant was first threatened when the fight was on that killed his cousin;
·     He was threatened in the night and was able to escape with his laptop because the neighbouring house was attacked. He escaped to another place in Port Moresby. The applicant was in Australia one week later. This was the incident where someone tried to shoot the applicant. Instead they hit his cousin with a stone;
·     The applicant belongs to the [Tribe 3] and the [Tribe 4] clan;
·     At the moment, his tribe is fighting with the [Tribe 5]. The fight started over a dispute about a gun. He does not know when this round of fighting started;
·     The current fighting is not the same fighting that was occurring when he lodged his protection application but is related to the fighting that was occurring at that time;
·     His tribe is involved in tribal violence during every election.
·     The first time the applicant came to Australia was just for a holiday. The second time the applicant came to Australia he tried to get a job but when
·     The second time the applicant came to Australia he tried to obtain a job but when he was unsuccessful, he applied for a protection visa;
·     The applicant started working for [Employer 1] in 2011 and worked until 2014.
·     He initially worked as a contractor for [Employer 1] but was only an employee from [January] 2013. His main expenses were social obligations; and
·     The applicant resigned before he first came to Australia. [Employer 1] did not know he was coming to Australia.
A delegate on behalf of the Minister refused to grant the applicant a protection visa on 9 October 2017.
On 3 November 2017, the applicant validly applied for that refusal decision to be reviewed by the Tribunal with the decision record attached.
On 22 April 2021, the applicant emailed the Tribunal stating:
I would like to brief a bit on the tribal fight issues and thank you for the opportunity to do so.
My reason for seeking protection from Australia was not because of one-off warfare or wars like in issues of North Sudan and South Sudan or Koran and Burma where ones it's over its over.
In Papua New Guinea and especially in Hela or Enga Province in the Highlands region of Papua New Guinea, tribal fights had been a way to resort to express anger during our traditional times like a hundred plus years or so or almost forever. we had no justice system in place and even today it's still happening.
Our tribal fights interconnected, when one particular tribe versus the other tribe fight is over, then the other erupts. This is how the other erupts when the initial fight is over. When during the initial fight there are other tribes who stay behind the warring tribes to help due to they being their allies or through other connections of their own and in the process if the helper tribe member dies in that tribal fights and after the waring tribe makes peace. Then the helper tribes continue to retaliate its death killed by another helper tribe on the other side they may kill it and the helper tribe from both sides now becomes the main waring tribes and then for waring tribes becomes helper tribe and so on and it goes on forever.
During the war, their high-scoring killings are like killing the valued member of the tribe like leaders or councilors or mostly educated elites which is this day. thus, people like myself who graduated to be an [occupation 1] and had a decent job and a beautiful life had no choice but to run away from my country and seek refuge in Australia and I absolutely had protection for 8 years. Thank you, Australia.
Nowadays the tribal fights had transited from bow and arrow and spear to automation. and even more wars in the tech error. More killings have been done than ever before this.
Our justice system is weak and less powerful due to a lack of resources and harmed forces in the disciplinary forces to contain the tribal warfares. There is more influx of high-powered guns owned by tribes than the police or army. Things have grown from a primitive war style of bows and arrows to machine guns.
The traditionally their reasons for the fight was for pigs or cattle and land and woman but now politics has come to escalate it even more plus business and so forth.
Thus, it's not safe for me to live in my country while being a valued member of the tribe and during the technology world tribal is everywhere in any way due to technology is easy to make a phone call to let the tribe member know where their enemy is to attack their enemy.
The traditional ways of main warring tribes with the helper tribes and then the help tribes becomes the main tribes and so and so the cycle has never been broken even to this modern error but gotten wars with machines of today.
I have attached a documentary done by the International Committee of the Red Cross (ICRC) did in the 7th of June,2017 for further elaboration.
Note. 'I can't say my tribe versus enemy tribe because it doesn't work that way, you either be a main warring tribe or helper tribe none this matter when it comes to your life being risked or endangered and it seems to go on forever till today.

On 12 May 2021, he applicant forwarded screenshots from his mobile phone: one undated message states that ‘Tribal fight in every village, [Village 1] is a war zone now’; and the another appears to be from Mamale Community Reconciliation Committee dated 24 March 2021 stating ‘Very disappointing with the fresh new tribal fight at Mamale. When will we ever learn!!??’.
As mentioned above, the applicant (and a witness) appeared before the Tribunal on 12 May 2021 to give evidence and present arguments as to the reasons the applicant was owed Australia’s protection obligations. No interpreter was used.
At the end of the hearing, no further submissions were required. However, the Tribunal provided for a period of time for the applicant to submit any further evidence or arguments in his favour and to do so by 15 May 2021. At the time of writing this decision, no further documents were submitted.
The applicant was not assisted by a registered migration agent o legal representative.
There were no non-disclosure certificates on file.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
The applicant provided a copy of his expired Papua New Guinea passport which are on departmental file as well as a copy of his current passport to the Tribunal at the scheduled hearing.
Based on these documents and without evidence to the contrary, the Tribunal finds that the applicant is a citizen of Papua New Guinea, that Papua New Guinea is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Papua New Guinea is his receiving country for the purposes of complementary protection.
Third Country Protection
With no evidence to the contrary, the Tribunal finds that the claimant has no right to enter or reside, either temporarily or permanently, any safe third country for the purposes of s.36(3) in the Act
Accepted circumstances and credibility findings
When assessing claims the Tribunal must make findings of fact in relation to the claims, in this case whether the electoral violence took place and whether the applicant was targeted afterwards as claimed. Findings of fact involve an assessment of an applicant's credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth and is guided by the observations and comments of both the High Court and Federal Court of Australia. In the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. This 'reasonable' approach is supported in numerous judgments and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.
The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The Tribunal is guided by these decisions and commentaries and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. The applicant is in immigration detention, which itself may be a stressful environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions.
In this matter, however, the Tribunal has identified a number of past incident claims lacking in credibility while it is accepting of those salient features about the applicant’s ethnic or tribal background that are relevant to the applicant’s overall claims that he is owed Australia’s protection obligations.
Accepted personal circumstances
The applicant has been found by the Tribunal to be a generally reliable and credible witness who elaborated on his otherwise vague written reasons for protection with frank oral evidence.
As the Tribunal found the overall evidence to be credible, the Tribunal accepts the following:
·     The applicant was born in [Town 1] in Enga Province in [year], as claimed;
·     The applicant’s mother primarily resides in Enga Province, although his father spends time in Port Moresby and Enga Province;
·     The applicant has [specified siblings in specified locations];
·     The applicant belongs to the Seventh Day Adventists, a Christian denomination;
·     The applicant speaks, reads and writes in Tok Pisin and English and speaks in Enga;
·     The applicant has one biological child, a daughter, born in [year]. The child lives in the applicant’s aunt. The child was a result of a romantic or sexual relationship, but the applicant claimed the relationship did not amount to a spousal relationship;
·     The applicant’s educational attainment includes [specified qualifications in specified years];
·     The applicant was employed as an [occupation 1] by [Employer 1], between 2010 and 2012 or 2013;
Critically for this application for review, the Tribunal has proceeded to determine which tribal or clan membership does the applicant hold as his ethnicity. It is noted the delegate was unable to be satisfied whether the applicant belongs to the [Tribe 1] or [Tribe 3]. The Tribunal spent some time with the applicant discussing his tribal or clan identity as the applicant claimed to be a member of the [Tribe 1] at the time of application in 2015 while in the departmental interview in 2016 he nominate the [Tribe 3].
The Tribunal has concluded the following from this discussion: the applicant’s immediate tribal group was [Tribe 1], who were within the wider [Tribe 3] tribal grouping; the [Tribe 4] was a tribal grouping with whom the [Tribe 3] were in alliance, while the [Tribe 2], [Tribe 6] and [Tribe 5] or clans were long standing rivals or enemies of the applicant’s [Tribe 3] sharing and contesting the use of resources within the [Village 1] territorial area within the [Town 1] District in Enga Province. The applicant also emphasised to the Tribunal that these very parochial tribal and clan alliances shifted overtime or could fall apart suddenly to disagreements over land, livestock and women but generally they maintained by intermarriage and agreements between elders.
For the purposes of this decision, the Tribunal finds that the applicant’s tribal identity is [Tribe 3] and the [Tribe 3] is the applicant’s race or ethnicity for the purposes of determining his refugee status under the Convention.
Tribal violence in Egna province
The applicant has made a claim that he cannot return to the home area in Enga Province his parents and other family due to febrile intertribal violence where alliances are transiently made and broken, fuelled by rumours of one tribal arming itself to attack another.
Enga Province is situated in the western highlands of PNG and it is the highest and among the most rugged of the provinces on the New Guinea island.
Country information from the most recent DFAT report dated 10 February 2017 indicates 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.
It further states:
Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs. In December 2014, the Internal Displacement Monitoring Centre estimated there were about 22,500 people displaced within PNG because of tribal warfare (and natural disaster). In particularly serious cases, provincial authorities may request the deployment of the Papua New Guinea Defence Force (PNGDF) and/or the Royal Papua New Guinea Constabulary (RPNGC) Mobile Squads. These forces are known for taking a blunt approach to restoring security, including through burning villages and holding village leaders for ransom until perpetrators have given themselves up.
The Inter-group Fighting Act (1977) prohibits inter-tribal fighting. Section 11 (2) of the Act provides for a punishment of between three and six years’ imprisonment where a person has taken part in inter-tribal fighting that has resulted in death. Section 11 (3) of the Act provides for a punishment of between 20 to 30 years’ imprisonment if a Court determines that an individual is a principal offender or a leader of a fight that results in death. While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they will be subjected to ‘payback’ violence (see ‘Glossary’) if they testify.
‘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. This focus on payback and traditional ‘compensation’ means that female or child victims of sexual assault and domestic violence can be discouraged from seeking the assistance of police or the courts. 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’.
During the hearing, the applicant was able to elaborate about the tribal violence in [Town 1] where he was born and from where his clan and tribe originated. The applicant claimed that tribal warfare existed as a problem since his childhood tribal violence; that violence erupted in 2007 during parliamentary elections and that violence occurred in 2013 were due to disputes between his [Tribe 3] and other tribes. The applicant claimed that [his Relative A] ran as a parliamentary candidate in the election. The applicant claimed that the 2013 violence was featured by shifting alliances and the threat of fighting currently exists between his tribe and some other tribunal grouping. The applicant explained that this was typical of the disputes. Noting that this elaboration reflects the available country information about tribal violence being frequent and triggered for a variety of reasons, the Tribunal accepts the applicant’s characterisation of [Town 1’s] intertribal disputes and accompanying damage to life and property.
The applicant also claimed that because he was educated and held a full time job with [Employer 1] that he was perceived as an enemy of rival tribal members emanating from [Town 1] because he had the means to finance firearms and other weapons for his [Tribe 3]. Again, this appears to be consistent with the country information.
In this regard, the Tribunal has considered the witness’ testimony. The Tribunal has also considered the witness has resided in Australia for twenty years and returned to PNG on three occasion, the last in 2018. The witness further claimed to be from Hela, another Highlands province, and from [another named] tribe. He claimed to have been a witness to intertribal conflict in his home province and that fighting between groups occur because of volatile relationships and alliances over property and marriages and that such conflicts can prolonged. He also claimed that intertribal violence used not to include women and children but do currently. The witness said the applicant was particularly at risk because of his educational attainment implied he was funding weapons in [Town 1]. While the Tribunal accepts this oral evidence as credible and the witness’ characterisation of Hela Province generally aligns with the characterisation of Enga Province. While the Tribunal found the witness to be credible, it found little relevancy in it regarding the applicant’s personal circumstances as they relate to him returning to Port Moresby.
Overall, the Tribunal accepts that the credibility of the applicant’s origins and experiences in Enga and accepts he holds fears of the kind of violence that erupts on a frequent basis in Highland provinces, such as Enga. It accepts the applicant’s [Relative A] ran in the violent 2007 parliamentary elections and that further local turmoil re-erupted in 2013 as claimed. It also accepts that his relative strong educational attainment and employment prospects were a source of concern to rival tribal combatants who assumed the applicant was funding weapons to wage bloody battles against them.
The Tribunal nonetheless notes that the applicant does not claim to have lived in Enga province since either 2005 or 2007 and that he lived and worked in Port Moresby, the capital and largest city of PNG, until his departure in June 2014. It is noted that he lived in Port Moresby with his father, who has some health issues, and his [sibling], while his mother and [other family members] generally resided in Enga province, without being seriously or significantly harmed.
For all intents and purposes, the applicant’s home area with Papua New Guinea is Port Moresby where he has spent most of his adult life in education or employment and where one of his siblings resides. Accordingly, the Tribunal will proceed in this decision to considered whether the applicant has a real chance of serious harm for a Convention reason or a real risk of significant harm in Port Moresby, and not Enga Province.
Past incidents of harm in Port Moresby
The applicant provided a written claim at the time of applicant that false rumours about the applicant being the sole sponsor and supplier of weapons via the [employer] which whom he was working, to his tribe or clan and/or allied clans; that he had been threatened, monitored; and that an attempt was made to kill him. During the attempt to kill him, his cousin was shot some twenty metres from his house. At the departmental interview, the applicant elaborated on this incident, stating his cousin was killed during an attack on a neighbouring house and that he was able to escape from his incident. Inconsistently with the written claim, the applicant informed the department that his cousin was hit with a stone, not shot.
During the scheduled hearing, the applicant was asked to recount the incident. At the hearing, he claimed the name of his cousin ([details deleted]) was [Cousin A]. Inconsistently from his earlier accounts the applicant stated that his cousin was not killed or shot or hit with a stone or rock. Instead he said that [Cousin A] killed someone from a man of the rival tribe and that [Cousin A] was injured to the extent he was put into a coma. He also mentioned that he lived in the same house as his cousin, not that they were neighbours living in different residences. When the Tribunal pointed out the inconsistencies the applicant responded that he was mistaken; that he just expressing his fears; and that with the complexity of the tribal situation it was difficult to maintain consistency.
The applicant also provided a new later claim not included when three rival or enemy tribal men carrying knives, came to his [Employer 1] workplace. The applicant claimed the police were called; that he was taken to safety and the three men fled. He also claimed no one was arrested. The applicant was not able to account for overlooking this late claim.
These inconsistencies and this late claim have invited serious credibility concerns about the applicant being a targeted person by rival tribal members for the reasons claim. The Tribunal is mindful that a person may forget dates, locations, distances, events and personal experiences. The Tribunal notes that it has not been provided any medical evidence about the applicant being diagnoses with memory difficulties. These inconsistencies, nonetheless, were so substantial - especially with regard to different accounts that his cousin had been killed and not merely seriously injured, that the Tribunal does not accept the applicant had difficulty remembering the incident for the reasons claimed.
Taking all these credibility concerns as a whole, the Tribunal does not accept as credible that the applicant’s house or a neighboring house in Port Moresby was attacked by rival tribal members; it does not accept the applicant’s cousin or any other relative was maimed, shot, bludgeoned or killed as variously claimed, it does not accept the applicant’s cousin or any other relative killed another person or any of the other details about this incident as claimed in writing or orally. Nor does the Tribunal accept as credible that the applicant’s workplace was subjected to threatening men searching for the applicant, carrying weapons for the reasons claimed, or that there was any incident requiring the intervention of the police as claimed. The Tribunal does not accept that the applicant was subjected to any specific targeted payback killings or compensation while living in Port Moresby for the reasons claimed. The Tribunal further finds that the applicant advanced these contrived and fabricated past harm incidents occurring in Port Moresby to augment his otherwise genuine and credible claims about fearing intertribal violence in Enga Province for the reasons claimed.
Delay in applying for protection
The Tribunal notes that the delegate placed much emphasis on the delay in applying for this protection visa. In particular, the delegate noted that the applicant held a PNG passport since 2009 and travelled to Australia [in] August 2013 – almost five months after he was granted a visitor visa on 9 April 2014. Then the applicant returned to PNG between [November] 2013 and returned on [date] March 2013. It took a further three months before the applicant applied in June 2014.
The Tribunal notes that the applicant has claimed that he held salient fears of intertribal violence from a young age and that he was a target for violence due to his relative education and his employment. The applicant further claimed that the triggering events for the applicant to return to Australia in March 2014 were incidents whereby his cousin was killed and he was threatened with his life and when rival tribal members searched for him at his workplace during his return visit to the capital of Papua New Guinea.
It was certainly open to the applicant to apply for a protection visa during his first visit to Australia given he claims to have held fears arising from intertribal violence and earlier than June 2014 after he returned to Australia in March 2014. The Tribunal also notes in the decision record the applicant sought to obtain a bridging visa in 2017 to travel back to Papua New Guinea to visit his parents.

Taken as a whole and in the context of the Tribunal’s adverse credibility findings about past harm incidents in Port Moresby, the Tribunal finds the evidence supports a finding that the applicant holds genuine, deep and urgent personally held fears of persecution in settling to Enga Province for the reasons claimed. However, given the opportunities he had to earlier apply for protection and there was nothing to prevent him from doing so, the Tribunal finds that the applicant’s fears of persecution for the reasons claimed in returning to his home area of Port Moresby were genuinely but deeply or urgently held when he arrived in Australia or at the time of application.
If follows from these findings that the Tribunal accepts that the applicant holds a genuine as well as an urgent and a deep fear in returning to Enga Province, while holding a genuine but not a urgent or deeply personally held fear of being harmed for a Convention reasons, namely his race or ethnicity, claimed if he were to return to Port Moresby, either now and into the reasonably foreseeable future.
Does the applicant have a real chance of serious harm in returning to Port Moresby?
In the context of its adverse findings in which the Tribunal does not accept two past harm incidents in Port Moresby found not to be credible, the applicant has somewhat undermined the credibility that he has genuine fear of persecution that is deep or urgent fears if returned to Port Moresby, the applicant’s home area.
Notwithstanding these adverse credibility findings and concerns, the Tribunal accepts there are salient reasons for the applicant to hold fears in returning to Port Moresby, and therefore, his country of nationality and reference, namely, that the applicant has a chance of serious harm from rival tribal members from [the Town 1] district in Enga Province on the combined basis of the applicant’s tribal identify as [Tribe 3] and his educational and employment prospects (indicating his capacity to fund weapons). The Tribunal accepts that the applicant will be able to find full time work commensurate with his skills and education or with his previous job and that it is plausible that his relative wealth will invite some disturbing speculation that he and his family are involved in funding weapons in the [Town 1] district by rival tribal members. For these reasons, the Tribunal accepts there is a chance of the applicant being targeted, attacked or even killed if he returns to Port Moresby and that such harm would be motivated by his [Tribe 3] identity or ethnicity by rival members of tribes from Enga Province. This is consistent with country information about tribal animosities and payback culture taking places outside of Highlands areas in Port Moresby and other large urban centres within Papua New Guinea.
However, the Tribunal finds the chances of serious harm based on the applicant’s tribal identity amounts to him having only remote or far-fetched chance if he were to return to Port Moresby. Even though PNG is rife with pay-back culture, family members close to the applicant have been able to visit and live in Port Moresby without being seriously harmed or harassed. Furthermore, the Tribunal does not accept the applicant was a victim or his cousin from the same tribe of such payback who had been singled out in the past. This is based on the Tribunal’s earlier findings about past harm claims in Port Moresby to be fabrications advanced by the applicant to augment his otherwise plausible fear of tribal violence for the reasons claimed. Taking these factors and findings together strongly indicates to the Tribunal that the applicant will be able to resume a working life in Port Moresby with only a remote or a far-fetched chance, and not a real chance of serious harm, for reasons associated with his race or ethnicity as a [Tribe 3] member or any other related Convention reasons base claimed into the reasonably foreseeable future.
For completeness, the Tribunal notes that the applicant mentioned that his [Relative A] had contested parliamentary elections in 2007 and that this election triggered intertribal violence. Given the passage of time, it does not find this political association, imputed or otherwise, increases the profile of the applicant, should the applicant return to Port Moresby. The Tribunal accordingly does not accept the applicant faces a real chance of serious harm based on his political opinion, imputed or otherwise or any other related Convention reasons in combination with his tribal identity or a real risk of significant harm based on the same consideration in returning to Papua New Guinea.
Taking all the evidence into account, the applicant does not have a well-founded fear of persecution, objectively considered, based on his ethnicity or race as a tribal member of [Tribe 3], his political opinion, imputed or otherwise, or for any related Convention reasons in combination with this education and perceived wealth, if he were to return to his country of nationality and reference, Papua New Guinea, into the foreseeable future.
Does the applicant have a real risk of significant harm in returning to Port Moresby?
The threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a).[1] As the ‘real risk’ test is the same standard as the ‘real chance’ test, the Tribunal does have substantial reasons for believing that the applicant, as necessary and foreseeable consequences of being removed from Australia to his home area, will suffer a risk of significant harm, including being arbitrary deprived of his life or being subjected to cruel and inhuman treatment of punishment by his persecutors, based on the dispositive claims about his tribal identity in combination with his level of education and employability.
[1] MIAC v SZQRB (2013) 210 FCR 505(special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323). The Court rejected the submission that ‘real risk’ was a higher threshold which required that the possibility of harm be more likely than not: per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s 36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.
However, the Tribunal finds that the risk of such significant harm to be faced by the applicant, as a necessary and foreseeable consequence of being removed from Australia to Port Moresby, is remote and far-fetched and one that does not amount to a real risk of significant harm. Accordingly, the applicant does not satisfy the requirements under s.36(2)(aa).
Residual claims and cumulative findings
In this matter, the applicant’s claims for protection have not notably or materially elaborated since he first applied for a protection visa in June 2014. In the findings above, the Tribunal has assessed that the applicant does not have a real chance of serious harm based on his race or ethnicity or membership of a particular social ground arising on his accepted tribal identity, his educational attainment or perceived wealth, for a combination of these reasons or for any other related Convention reasons in returning to Port Moresby. It also makes findings that that applicant has not claimed or advanced holding any fears persecution or serious harm based on his nationality, his religion, his political opinion, imputed or otherwise, or any other memberships of a particular social group, other than the membership address above.
Although the applicant did not advance it, the Tribunal accepts the levels of random violence and lawlessness in PNG is concerning and may have contributed to his fears in returning to Port Moresby. However, such violence is not targeted towards the applicant is not motivated by the applicant’s race, religion, nationality, political opinion or membership of any particular social group. Therefore, the applicant does not hold a well-founded fear of persecution for a Convention reason if returned to Papua New Guinea into the reasonably foreseeable future as required by Refugees Convention. Furthermore the general situation regarding generalised violence throughout PNG is one faced by the general population and is not faced by the applicant personally. Accordingly, the applicant is taken not have a real chance of suffering significant harm in Papua New Guinea, pursuant to s.36(2B)©.
The applicant had mentioned that he had social obligations to his family and that he has a child out of wedlock and that he sends remittances to support the child. However, at no stage did the applicant advance any fears of a well-founded fear of persecution or a real risk of significant harm arising from these circumstances, either individually or in combination with other claims for protection. Accordingly, the Tribunal found no material relevancy in them as part of this application for review.
The Tribunal is satisfied that there are no more residual claims to address in this matter.
Having carefully considered the cumulative effect of these abovementioned factors and the applicant’s attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if the applicant returns to his country of nationality and reference, Papua New Guinea, in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having assessed all of the applicant’s’ claims under s.36(2)(aa) of the Act, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Papua New Guinea, there is a real risk of significant harm, including risks that the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treating or punishment, as required by s.36(2)(aa) of the Migration Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Brendan Darcy
Member

[2021] AATA 3221

9 July 2021

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Immigration

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