1912057 (Refugee)

Case [2023] AATA 2884

1912057 (Refugee) [2023] AATA 2884 (8 May 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1912057

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:David James

DATE OF DECISION:  8 May 2023

DATE CORRIGENDUM

SIGNED:11 September 2023

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.In Paragraph 14 dot-point 1, “my enemies came to my village” should be “his enemies came to his village” to bring it in-line with syntax of other dot-points in this paragraph as this was not a quoted statement by the applicant.

2.In Paragraph 31, “he explained that many Dena tribesmen and women and come and stayed with [Tribe 1]” should be “he explained that many Dena tribesmen and women had come and stayed with [Tribe 1]”

3.In Paragraph 67, “the applicant has a right to enter and reside in a country other than Sierra Leone” should be “the applicant has a right to enter and reside in a country other than PNG”

David James
Senior Member


DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1912057

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:David James

DATE:8 May 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 May 2023 at 1:26pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – inter-tribal conflict – fear of harm by warring tribe members – delay in applying for protection – vague and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310 of 1997
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
SZRQA v MIBP [2013] FCA 962

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 Home Affairs (Department) on 30 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of Papua New Guinea (PNG), applied for the visa on 4 July 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the…

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Details
AGLC
1912057 (Refugee) [2023] AATA 2884
Case
[2023] AATA 2884
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual who claimed to fear persecution in Papua New Guinea due to inter-tribal conflict. The applicant alleged that a land dispute between the Dena and Mananga clans in 2008 led to widespread violence, including killings and destruction of property, and that he was targeted due to his clan's involvement and a subsequent act of retaliation. The applicant sought review of a delegate's decision to refuse the visa.

The court was required to determine whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under the Act, and if so, whether there was a real chance of such persecution upon return to Papua New Guinea. Alternatively, the court had to consider whether there were substantial grounds for believing that the applicant faced a real risk of suffering significant harm as a necessary and foreseeable consequence of removal to Papua New Guinea.

The court considered the applicant's claims, including evidence such as photographs and a newspaper article detailing tribal clashes between the Dena and Mananga tribes. However, the court noted inconsistencies and vagueness in the applicant's evidence, particularly regarding his direct involvement in the conflict and the specific targeting of his clan. The delegate had found a lack of credibility in the applicant's account, noting that his stated clan was not identified as being involved in the conflict described. The court also had regard to country information from DFAT, which confirmed the prevalence of inter-tribal violence in Papua New Guinea, often triggered by land disputes and other factors, and that such conflicts could affect displaced populations and lead to ongoing targeting. Despite the general country information, the court found that the applicant had not established a well-founded fear of persecution or a real risk of significant harm due to a lack of credible evidence directly linking him to the specific conflict and the reasons for his alleged targeting.

The court affirmed the delegate's decision to refuse the protection visa, finding that the applicant had not satisfied the criteria for protection under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to PNG he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Claims The applicant, when applying for the visa, outlined his claims for protection (as summarised) as being that:·Back in 2008 there was a fight over land between the Dena and Mananga clans. The fight started by throwing stones and fighting. The next day my enemies came to my village with their guns and destroyed houses, gardens and many people were killed on both sides.·As he was sick of the fighting he took off to Australia and is now seeking protection.·He moved to Port Moresby and resided there for 8 months but as his enemies were still after him, he had no option but to take off for Australia.·He cannot return to PNG as his enemies will definitely harm him as many people were killed at the time of the fighting which is still ongoing now.·He cannot be protected by the police as the PNG law and order is powerless. The applicant provided to the Department several photos depicting a gravesite, a man with a rifle and a man with a bow and arrow together with a newspaper article dated 18 September 2015 and headed ‘Tribal clash leaves 12 dead’. The newspaper article reports that twelve people including three women are dead following a gun battle between two tribes in Jiwaka. The warring tribes are identified in the article as the Dena and Mananga tribes. It is further reported that these deaths bring the total number of people killed in this dispute to eighteen. The article also reported that:Joseph Tep from the neighbouring Kopi tribe said police, church groups and peace mediators had done their best to stop the hostility but the two tribes refused to listen.Department interview The applicant was interviewed by the Department on 18 April 2019. During this interview the applicant explained that he was from the nearby [Tribe 1] clan (as to the conflict between the Dena and Mananga clans) and that some of the people involved in the tribal fighting from the Dena clan had fled to his village. He stated that one of these people had raped his sister and as a result of his clan’s retaliation for the rape he and his brother had been targeted.Delegate’s decision

Decision

Reasons for decision

The applicant was interviewed by the Department on 18 April 2019. During this interview the applicant explained that he was from the nearby [Tribe 1] clan (as to the conflict between the Dena and Mananga clans) and that some of the people involved in the tribal fighting from the Dena clan had fled to his village. He stated that one of these people had raped his sister and as a result of his clan’s retaliation for the rape he and his brother had been targeted.Delegate’s decision The delegate’s decision of 30 April 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that there had been ongoing conflict between the Dena and Mananga tribes dating back many years but there was no information before the delegate to indicate that [Tribe 1] had been involved in the conflict. Additionally, the delegate noted that the applicant in his application and interview had not claimed to have been harmed in PNG. Due to the delegate’s finding of a lack of credibility on the part of the applicant the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. Invitation to attend hearing On 18 April 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Thursday 4 May 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. Country information The Tribunal has taken into account the DFAT Country Information Report Papua New Guinea, 6 September 2022, as relevant, including the information under the heading of ‘Inter- Group Violence’ at 2.27 to 2.32 of the report where it is reported at 2.27 to 2.28 and 2.31 to 2.32 that:Tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period. Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced. Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there. DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG.

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to PNG he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Claims The applicant, when applying for the visa, outlined his claims for protection (as summarised) as being that:·Back in 2008 there was a fight over land between the Dena and Mananga clans. The fight started by throwing stones and fighting. The next day my enemies came to my village with their guns and destroyed houses, gardens and many people were killed on both sides.·As he was sick of the fighting he took off to Australia and is now seeking protection.·He moved to Port Moresby and resided there for 8 months but as his enemies were still after him, he had no option but to take off for Australia.·He cannot return to PNG as his enemies will definitely harm him as many people were killed at the time of the fighting which is still ongoing now.·He cannot be protected by the police as the PNG law and order is powerless. The applicant provided to the Department several photos depicting a gravesite, a man with a rifle and a man with a bow and arrow together with a newspaper article dated 18 September 2015 and headed ‘Tribal clash leaves 12 dead’. The newspaper article reports that twelve people including three women are dead following a gun battle between two tribes in Jiwaka. The warring tribes are identified in the article as the Dena and Mananga tribes. It is further reported that these deaths bring the total number of people killed in this dispute to eighteen. The article also reported that:Joseph Tep from the neighbouring Kopi tribe said police, church groups and peace mediators had done their best to stop the hostility but the two tribes refused to listen.Department interview The applicant was interviewed by the Department on 18 April 2019. During this interview the applicant explained that he was from the nearby [Tribe 1] clan (as to the conflict between the Dena and Mananga clans) and that some of the people involved in the tribal fighting from the Dena clan had fled to his village. He stated that one of these people had raped his sister and as a result of his clan’s retaliation for the rape he and his brother had been targeted.Delegate’s decision