1912637 (Refugee)

[2024] AATA 4037

1912637 (Refugee) [2024] AATA 4037 (16 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Simar Hermis (MARN: 1464902)

CASE NUMBER:  1912637

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Stefanie Memmott

DATE:16 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s36(2)(aa) of the Migration Act.

Statement made on 16 August 2024 at 2:56pm

CATCHWORDS

REFUGEE – Protection Visa – Papua New Guinea – fears harm from relatives and/or fellow tribesmen of the man killed – custom of payback – target for payback – there is a real chance the applicant would face harm in the form of violent physical attacks and/or murder – a member of a particular social group in Malaysia – persons targeted for retributive tribal violence – relocation is not reasonable – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 46, 65, 423, 424, 499

Migration Regulations 1994, Schedule 2

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 on 11 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of Papua New Guinea, applied for the visa on 16 February 2018.

CLAIMS AND EVIDENCE

Claims and evidence before the Department

Protection visa application

2.    The protection visa application form includes, among other things, the following personal information:

·     The applicant was born in [year] in [Village 1], [Town 1], Eastern Highlands Province, PNG.

·     He is a citizen of Papua New Guinea and no other country.

·     He was married to his wife in 1998 and has three children, who remain living in Port Moresby. He also has 2 younger sisters and a younger brother.

·     The applicant travelled to Brisbane, Australia on [date] December 2017 as the holder of a Papua New Guinean passport and visitor visa.

3.    The visa application form refers to the forthcoming provision of a full statement, but includes the following claims for protection and related information:

·     The applicant left Papua New Guinea because he was in fear of his life and there was no where else in Papua New Guinea where he could go and be safe.

·     Last year, following a fight that his brother was involved in and in which a [Tribe 1] tribesman was killed, the [Tribe 1] tribe have been pursuing him for compensation he cannot pay and have been trying to seriously harm him in revenge and to recover compensation.

·     The applicant fears he will be killed or seriously harmed by the [Tribe 1] men.

·     He was pursued and attacked on a number of occasions by the [Tribe 1] men.

·     He reported the attacks to [a] Police Station on four occasions. The police wrote a letter to his employer (copy attached) and took a statement, but did not take any steps to protect him and instead told him that he should just approach the police again if he was attacked.

·     It is impossible for the applicant to hide in Papua New Guinea, where he will go he will be found by the relatives of the deceased [Tribe 1] man.

·     The police force in Papua New Guinea are notoriously under-staffed and it is well known that they are completely ineffective in protection people who are the victims of tribal disputes.

4.    The form indicates that the Refugee Advice and Casework Service assisted in the preparation of his application.

5.    In March 2018, the applicant submitted a statutory declaration in support of his application (declared on 9 March 2018), which provided the following personal information:

• The applicant is part of the [Tribe 2] tribe.

• The applicant moved to Port Moresby when he was a child, his parents still live there. His two younger sisters and younger brother also live in Port Moresby, they are married with their own families.

• His wife and children remain living in Port Moresby. On his departure, the applicant made arrangements for them to live with his wife’s sister after the housing supplied with his employment ceased.

• The applicant worked as a [Occupation 1] for [Company 1] in Papua New Guinea for some 20 years, though he had to leave it before coming to Australia.

6.    The statutory declaration also set out the following claims for protection and related information:

• In the early hours of the morning of 26 August 2017, the applicant’s younger brother [Mr A] was involved in an incident involving drunken youths. During that incident [Mr A] killed a man named [Mr B]. The applicant was not with his brother when this incident occurred, he did not participate in or witness the incident.

• The victim was from [named] tribe, and born in [a] region in the central province of PNG. These [Tribe 1] people are one of the main communities in Port Moresby.

• The applicant’s brother told the applicant that he has been drinking with four (named) friends prior to the incident and they were all very intoxicated when the incident occurred. In the early hours, a fight broke out and the victim joined the fight. The victim had not been drinking with the applicant’s brother and his friends, but had been drinking on his own and was also very intoxicated.

• The applicant’s brother said that during the fight, the victim went for him. To defend himself, the applicant’s brother elbowed the victim under the chin. The victim fell backwards and hit his head on some rocks or hard ground behind him, and this killed him instantly. The applicant’s brother is a tall, well-built man who played [a sport] but has never been a trouble maker. The applicant’s brother told the applicant that he was simply trying to defend himself and the death was an accident.

• The applicant’s brother went to the police station as soon as the incident occurred, to report the death and circumstances of the incident. The police told him to go away though, as the family had not yet made a complaint and could not charge him until this occurred. The applicant’s brother then came to visit the applicant, the applicant told him he had to go back to the police. The applicant’s brother did this, and by that point the victim’s brother and sisters had lodged a complaint, so the police locked him up. He has been incarcerated ever since. The applicant is not sure if he has been charged or sentenced, nor how long he will be locked up.

• On 10 September 2017, around 6-6.30am, the applicant took the bus to his parent’s house. As he walked from the bus stop to his parent’s house (approx. 250m) he passed a group of drunk men. He had never met these people before. They were all armed, either with bush knives (Tramontina), sharp iron rods, stones and welded knives, which were concealed at first. They pulled out these knives when they saw the applicant. They shouted ‘grab him, grab him’ and pointed at the applicant. The applicant realised they were after him and so he started to run. He could see 3 or 4 men running after him, and heard them say things like ‘this is the right time don’t let him escape’ and ‘finish him’. They also shouted ‘murderer’ at him, so he knew it related to the incident. When he reached his parent’s yard he grabbed an iron rod from the ground (part of the fence) and waved that to scare the men, some neighbours came out of their houses too, and the men drew back and left.

• About a week later (on or about 17 September 2017), the applicant and his wife went to visit his wife’s younger sister in [a] suburb Port Moresby, to ask about financial assistance to pay compensation for the victim’s death. She told them that a neighbour had told her that [Tribe 1] people in the neighbourhood had been going around making threats against the applicant and plotting to ambush him. They made sure they left before it got dark. Then at around 7.00-8.00pm that night some [Tribe 1] people went to the house of this sister asking for the applicant. She told them the applicant had left, and they said that was lucky as they would have cut him to pieces like a chicken in front of his wife, and would have raped and killed his wife.

• The applicant was traumatised and scared after these threats, he wanted to leave Port Moresby but knew he couldn’t due to the scheduled mediation.

• A Peace Mediation Committee had been scheduled for 24 September 2017, as is customary now in PNG, during which the applicant’s family would be required to meet with the family and community of the victim and pay compensation. Present at the mediation were community [leaders], representatives from the [Tribe 1] community, [a] Police Station Commander Mr [C], the applicant’s close friends and relatives, and a community leader from the [Tribe 2] tribe. There were four members from different tribes from the applicant’s and the victim’s, meant to be independent.

• The [Tribe 1] people demanded a compensation of [amount]. The applicant paid over K15 000, which he had already collected from his savings, his sisters, relatives and friends. He told the mediators that [amount] was too much for a person like him to pay, noting he was the only family member working, had a low wage, a family and elderly parents. The mediators understood and told the [Tribe 1] people no more could be paid. However, the [Tribe 1] people did not accept this, and one of the [Tribe 1] councillors expressed that they were unhappy with the applicant and his family.

• The applicant cannot afford to pay the full [amount]. In any case, even if he could, the [Tribe 1] people would still come after him and threaten his life. They need to kill him to avenge the death of the victim. Payment of the compensation sum would not stop them trying to kill him. They cannot kill his brother as he is in jail, so they are coming after the applicant as the only other working male in the family. They know if they kill him it will stop any income coming to the family and make them suffer, make them know how if feels to lose a young male family member. That is why they are only threatening him, not the applicant’s parents or sisters. Also, because his sisters are married (and so considered part of their husband’s families) and because his parents are too old, so that killing them would not avenge a young man’s death. The victim was in line to replace his father as a tribe leader and big boss, so that the victim’s loss was a very big deal. The applicant knew that the [Tribe 1] would not rest until he avenged the victim’s death.

• After the mediation, the applicant went to report the threats to his life to the police. He hadn’t done this prior to the mediation for fear of aggravating the [Tribe 1] people. He first went to the police station on 26 September 2017, but was told to come back the next day as they were understaffed. The applicant returned the next day, but there were only reservists working and comments they made suggests they wanted a bribe which the applicant didn’t want to give. On 2 October 2017 the applicant went again to the police station, and was given an appointment to speak to a senior officer on 6 October 2017. He went back again and spoke to a senior constable, who registered his complaint and took his statement. He told the applicant to call him if anything happened or if he saw anything suspicious.

• The applicant decided, after discussions with his wife, children and immediate family, that it was best for him to come to Australia given the repercussions his death would have. The applicant knew the police would be powerless to protect him, given they took no steps to investigate or protect him following the report he made. They have not and will not be able to do anything effective to protect him. The applicant came to Australia on a tourist visa in December 2017.

• The applicant fears that if he returns to Papua New Guinea he would be seriously harmed, killed, subject to significant physical harassment and/or assault. People from the [Tribe 1] community live everywhere in Port Moresby, it is their place, and it is very easy to find people in Port Moresby. The applicant doesn’t think the [Tribe 1] people will ever give up. They cannot give up as a young man is dead, the murder happened in a public place and they must pay it back. They have to kill the applicant to make it fair and restore honour to their tribe.

• The applicant could not move anywhere else in Papua New Guinea away from Port Moresby. It is where he grew up and had a job. He has never lived near [Town 1] as an adult. People from villages do not like city people returning to the village, even if they belong to the tribe – they would not be hospitable. He has also heard about sorcery accusations and such things being made there. It is not safe for him there and the villagers would not protect him.

• In any case, if he moved anywhere in Papua New Guinea the [Tribe 1] would still find him. Papua New Guinea is not a big place, it would not be difficult and he would stick out in any place that is not Port Moresby. Each tribe has its own tribe and own language and they do not let outsiders in. It’s not possible for the applicant to blend in.

• Also, if he moved he would be homeless. Land is very important in Papua New Guinea and people fight over it. He could not just find land to buy and build a new house, and its not possible for him to rent a house somewhere else in Papua New Guinea.

Supporting documentation

7.    The file held by the Department of Home Affairs (the Department) includes copies of each page of the applicant’s passport, issued in [2016] in Port Moresby.

8.    The statutory declaration made 9 March 2018 annexed a copy of what is said to be a statement he gave to police about the incident and threats subsequently received. This was also lodged with the visa application form. The document sets out details of the incident during which the victim was killed, and the experiences of the applicant after this.

9.    In the statutory declaration, the applicant notes that in this statement to the police he referred to the victim as [Mr B variation], and explains that he was a ‘street person’ (i.e. someone who is a criminal or thief, not homeless) who went by different names. The applicant believes that ‘[Mr B variation surname]’ is the name of the victim’s grandfather, and that (having checked with a family friend in February 2018) ‘[Mr B surname]’ is the correct surname. He also explains that the reference, in the police statement, to the victim being ‘[Tribe 1]’ is a reference to where he is from (not his tribe’s name). He also indicated that some of the dates in the statement may be incorrect, as he was eager to get the statement done after so many visits to the station.

1. The statutory declaration made 9 March 2018 also annexes what is said to be a letter from Mr [C] ([a] Police Station Commander) to the applicant’s boss at [Company 1]. A copy of this document was also provided with the visa application form. This is an undated document which appears on police letterhead and refers to the applicant’s police report and his brother being detained for murder.

2. Under a cover letter dated 22 March 2018, the applicant also provided a photocopy of an article from [a] newspaper in Port Moresby dated [date] 2017, said to refer to the incident. The article refers to the death of a young [Tribe 1] man (named as [Mr B]) killed in a drunken argument by three men from [Town 1], and states one of the perpetrators has been arrested. The cover letter refers to a different spelling of the victim’s name and asserts that the newspaper’s reference to [amount] compensation being paid is a mistake.

Departmental interview

1. The delegate’s decision record indicates that the invitation to interview was returned to the Department, and accordingly no interview took place.

Delegate’s decision

1. A delegate of the Minister for Home Affairs refused the visa application on 11 April 2019. The delegate considered that the applicant’s claims did not relate to one of the reasons specified in s 5J(1)(a) of the Act and so concluded the applicant was not a refugee. In relation to complementary protection, the delegate accepted the applicant’s account of past events but noted there was no claim that threats had been made since the applicant had travelled to Australia nor any recent information as to his brother’s case. The delegate was not satisfied that there was a real risk the applicant would suffer significant harm.

Claims and evidence before the Tribunal

Application for review

1. The applicant lodged an application for review on 21 May 2019. No documents were lodged with the application.

2. On 11 July 2019, written notice was provided appointing a representative and authorised recipient, being a migration agent with the firm Hermis & Associates.

Pre-hearing submissions and evidence

1. Prior to hearing, the applicant’s representative provided written submissions and two further pieces of evidence. The first was another newspaper article [concerning] the killing of a [Tribe 1] man in Port Moresby, this one dated [date] 2017. It again refers to his death occurring as a result of a drunken argument and refers to the victim as [Mr B]. It doesn’t specify when the incident occurred, but refers to the victim’s body being flown back to his village ‘last Sunday’ suggesting the incident occurred some time before the article was published.

2. The second piece of evidence was an email dated 23 May 2021 from Mr [D] (described as a close family friend at hearing). This email provides information not only about the claim for protection based on the death of the [Tribe 1] man, but other claims raised at hearing (as discussed further below). It has the subject line ‘Update on [applicant name]’s Case’ and sets out the following:

   On the 27/02/21

   The [parents] of [the applicant] complaining about his final entitlements and mobilizing Street youths to attach [the applicant]'s wife [and] the children but fortunately there was a church family who are neighbours step in and advise the youths to return back as the mother and the children are innocent.

   The youths returned, shouting calling [the applicant]'s name that they will not see him around, if they happen to see him, they will kill him.

   On the 16/05/21

   The [Tribe 1] group of youths they fronted [the applicant]'s wife [again] and warned her that we will not give any chance if we see [the applicant] around, from time to time we will come around looking for [the applicant] until we found him and deals with him then we may satisfy.

   On the 30/04/21

   The sorcerers back in the village mobilized and got uprooted 70 matured coffee trees with banana trees, uprooted sweet potatoes and many more food crops that are grow on [the applicant]'s plot of land.
   The sorcerers are angry because [the applicant] mentioned their names in public and exposed them.
   The sorcerers mentioned [the applicant]'s name and warned that [the applicant] will never come to his home village, we will kill him physically or through socery.
   I went to the village few days and confirmed all the happenings that took place in the village on [the applicant]'s land.

   I was born and raised in PNG and I felt for [the applicant] because I witnessed most of the bad things happened on [the applicant]'s properties and fully recommend [the applicant] not to come to PNG, as his safety is in great danger and not safe any more to come and live in PNG.

The hearing – oral and documentary evidence

1. The applicant appeared before the Tribunal on 5 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (Tok Pisin) and English languages.

2. At hearing, the applicant gave evidence about the risk of payback because his brother killed a [Tribe 1] man, consistent with his written claims for protection. He claimed that the family and community of this man would still be motivated to harm him many years after the death, particularly because the man killed was next in line to become a tribal leader, and that they will not let go of their anger until they carry out payback by killing him. The applicant also gave evidence that he fears he will be accused of sorcery by relatives who are angry about the circumstances of his departure and because he said the name of someone practising sorcery (against customary law) who then died. This evidence is discussed further below, as relevant.

1. The applicant’s representative attended the hearing and made oral submissions.

1. During the hearing, at the applicant’s request, the Tribunal attempted to contact Mr [D] by telephone to provide evidence, however that attempt was unsuccessful. The applicant explained that Mr [D] had planned to travel to a town on the day of the hearing in order to be somewhere with mobile phone reception, but that this involved a long trip and his phone battery might have died.

Post-hearing evidence and submissions

1. On 22 July 2024 the applicant’s representative lodged further written submissions which addressed a number of issues raised at hearing. The submissions also outlined further information (provided verbally, by phone) obtained from Mr [D] about the applicant’s brother’s incarceration. These submissions are discussed further below, as relevant.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

4. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

5. 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

1. 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

1. For the following reasons, the Tribunal has concluded that this matter should be remitted for reconsideration.

Receiving country

1. The applicant claims to be a citizen of Papua New Guinea and no other country. As noted above, the Departmental file contains a copy of the applicant’s Papua New Guinean passport. The Tribunal accepts the applicant is a national of Papua New Guinea and that Papua New Guinea is the receiving country for the purposes of assessing his claims.

2. There is no evidence to suggest that the applicant has the right to enter and reside in another other country, and accordingly s 36(3) of the Act does not apply.

Assessment of credibility of evidence

1. At hearing, the applicant gave oral evidence that was consistent with his very detailed statutory declaration made on 9 March 2018 and his protection visa application. He has provided evidence that corroborates his account of past events in Papua New Guinea, in particular the letter from Mr [C], the newspaper articles and information from the applicant’s friend, Mr [D]. His account of events and claims are also generally consistent with country information (as discussed further below).

2. The Tribunal notes that certain details set out in the newspaper articles (e.g. spelling of victim surname, compensation amount) differed from the applicant’s account, but considers these are minor details which can be explained by errors in reporting.

3. The Tribunal was somewhat concerned about the document (dated 10 October 2017) being described as police statement. This document is entitled ‘Affidavit in Defense’ and is addressed to [named personnel] at [Company 1] and is ultimately framed as a request for a leave of absence from work. It does bear the stamp of the [Police] Station Commander, but otherwise does not appear to be a statement made for police purposes.

4. However, at hearing the applicant clarified that it was a document written for the purposes of seeking leave from his workplace. He explained that a typist at the [workplace] where he worked (as a [Occupation 1]) helped him type it and then he took it with him to the police station to get the police to stamp it.

5. The Tribunal was also concerned that the account of events which occurred following the [Tribe 1] man’s death set out in this document (dated 10 October 2017) was inconsistent with the statutory declaration in certain respects, albeit in relation to fairly minor points. For example, the 10 October 2017 document did not refer to the people who ambushed the applicant at the bus stop as having weapons, and the content of the threats which were made via the applicant’s wife’s sister were different.

6. However, as noted above, the oral evidence given at hearing was very consistent with the statutory declaration made on 9 March 2018 (including on these particular points). The applicant also explained that the statement was prepared in a rush and at a time when he was very scared and under stress. Once he came to Australia and was calmer, he was able to recount events more precisely. He also referred to the assistance he received in preparing the statutory declaration, and how that helped him to accurately recall things. The Tribunal accepts these explanations and the evidence given about how the 10 October 2017 document was prepared. It accepts the oral evidence given at hearing and the written account set out in the statutory declaration. The Tribunal has not drawn any general adverse inference from the points of inconsistency raised at hearing.

7. At hearing, the Tribunal also invited the applicant to comment on or respond to certain information contained in previous visitor visa applications, in accordance with the terms of s 424AA of the Act. Those applications, lodged in 2009, 2001, 2013, 2017 indicated the applicant was single and did not have children (at times when he was married and did have children) and referred to the applicant having a brother in [a city in Australia] (when he does not).

8. The applicant explained that he didn’t fill out the applications himself, but rather paid an agent to do this. Submissions made by the applicant’s representative also make the point that failing to declare his wife and children would have in fact weakened his visitor visa applications (as they represent an incentive to return after visiting Australia) – suggesting the omissions were not deliberately made to gain an advantage. These submissions also note that the applicant accepts it was his responsibility to ensure the information in the applications was correct, but that it was understandable that someone of limited education and knowledge about international migration would have engaged an agent and relied on them to make these applications.

9. The Tribunal accepts the explanation of how the visitor visa applications were prepared. While regrettable, the content of these applications has not caused the Tribunal to draw general adverse inferences about the credibility of the applicant’s evidence.

10. The Tribunal also notes that the applicant advanced claims concerning his relatives which were not raised before the primary decision were made. He gave evidence that his family is upset with him because he didn’t stay to face the consequences of what his brother did and because they think he got a large pay-out when he left his job and that he ran away with this money. They are also upset with him for breaking customary law by naming people who practised sorcery, with the result that they died. He feared he would be accused of sorcery. However, he explained that those people didn’t die until 2021 (well after the primary decision was made) and that he didn’t previously raise the other problems with his family because he thought they would soon resolve themselves – but they haven’t. The Tribunal is satisfied that there is a reasonable explanation as to why these claims weren’t presented before the primary decision was made and has not drawn an unfavourable inference as a result of this, either in accordance with s 423A of the Act or otherwise.

11. Overall, the Tribunal considers that the applicant’s account of events in Papua New Guinea, as given orally at hearing and as set out in his visa application and statutory declaration of 9 March 2018, to be credible. The Tribunal also accepts as credible the evidence of Mr [D]. The Tribunal has made findings of fact accordingly (below).

Findings of fact

1. The Tribunal accepts that while born in [Village 1], the applicant moved to Port Moresby at a very young age and lived there until his departure for Australia in 2017. The Tribunal accepts the applicant’s evidence that he would have no option but to live in Port Moresby if he returned to Papua New Guinea.

2. The Tribunal accepts the applicant’s evidence (given at hearing) that he has, in recent years, separated from his wife and that he has not had contact with his family since being in Australia because they are angry at him for leaving and for breaking custom (by naming sorcerers). The Tribunal accepts he only has contact with Mr [D], who provides him with updates on his children, one of whom lives with Mr [D] and his family.

3. The Tribunal accepts that the applicant’s brother killed a man from [Tribe 1] during a drunken brawl in late August 2017 as claimed. The Tribunal accepts this man was prominent within his tribe / community, as the son of a leader and a future leader. The Tribunal accepts that the applicant’s brother remains in prison because of this incident.

4. The Tribunal notes that the applicant was not aware of the sentence of imprisonment his brother is serving, but accepts the submission made by his representative that it is likely to be a very lengthy one. In this respect the Tribunal notes Part V of the Papua New Guinea Criminal Code Act 1974, which provides that penalties for unlawful killings are either life imprisonment or the death penalty (though recently the death penalty has been replaced with life imprisonment penalties by the 2022 Criminal Code Amendment Bill).[1]

   [1] Criminal Code Act 1974, accessed by the PacLII database. ( accessed 14 August 2024); DFAT Country Information Report – Papua New Guinea, September 2022 (para 4.30).

5. The Tribunal accepts that the applicant was ambushed and attacked by a group of men on or around 10 September 2017 as claimed, and that some [Tribe 1] people came to his sister in law’s home on around 17 September 2017 to look for the applicant and made threats about the applicant and his wife. The Tribunal accepts that the dead man’s family were not happy with the compensation paid and expressed this at the mediation held on or around 24 September 2017. The Tribunal accepts the applicant’s evidence (given at hearing) that he thereafter remained [at the workplace] (where he worked), living there, to avoid trouble until he decided to come to Australia.

6. The Tribunal accepts that [Tribe 1] people have approached the applicant’s (then) wife since he has been in Australia and warned that they will keep looking for the applicant (as described in Mr [D]’s email of 23 May 2021). The Tribunal accepts the applicant’s evidence (given at hearing) that Mr [D] has more recently warned him that [Tribe 1] people are still looking for him and asking after him.

Assessment against refugee and complementary protection criteria

1. Country information before the Tribunal confirms that a custom of ‘payback’ exists in Papua New Guinea - an act of retaliation that is usually carried out when one group has been harmed by another. The system of Wantokism, whereby members of the same tribe have mutual obligations and give primacy to the welfare of their tribe, means that entire tribes will retaliate against perceived wrongs committed against fellow tribe members, creating a difficult to break cycle of retribution. Payback can also be remedied through the payment of traditional or financial compensation to the victim or their family.[2] However, if communities are not satisfied with the compensation offered, violence may continue.[3] Country information before the Tribunal confirms that when compensation is not paid and conflicts remain unresolved, payback killings can occur, and that immediate family members of perpetrators may be blamed for deaths.[4] It also confirms the role of village courts in trying to resolve tribal disputes,[5] as described by the applicant.

   [2] DFAT Country Information Report – Papua New Guinea, September 2022 (p.4, para 2.27); ‘Papua New Guinea Country Report 2016’, Bertelsmann Stiftung’s Transformation Index, 2016 (pp.5 & 14); ‘Country Reports on Human Rights Practices 2017. Papua New Guinea’, US Department of

   [3] DFAT Country Information Report – Papua New Guinea, September 2022 (paras 5.8. 5.9).

   [4] Kopi, M, Hinton, R & Robinson, S 2010, Violence and Insecurity in the Southern Highlands of Papua New Guinea, Oxfam New Zealand (p.95).

   [5] DFAT Country Information Report – Papua New Guinea, September 2022 (paras 5.8. 5.9).

2. The Tribunal was somewhat concerned about the passage of time, and whether the relatives and/or fellow tribesmen of the man killed would still be motivated to harm the applicant. However, the Tribunal accepts the applicant’s evidence about the prominence of the victim within his tribe (as next in line to become a leader) and accepts that the custom of payback in circumstances where the compensation paid was seen as inadequate would motivate the family and/or tribe of the dead man to seek revenge even many years after his death. The Tribunal accepts that the applicant’s brother remains in prison and will remain there for the reasonably foreseeable future, such that the applicant would be the target for payback (as the only other male of working age in his family).

3. The Tribunal is satisfied that there is a real chance the applicant would face harm in the form of violent physical attacks and/or murder in the reasonably foreseeable future on return to Papua New Guinea.

4. However, the Tribunal is not satisfied that the essential and significant reason for this harm would be one of the reasons specified in s 5J(1)(a) of the Act. The applicant’s representative has submitted that the perpetrators of harm would target the applicant because he is a member of a particular social group, variously formulated as ‘persons targeted for retributive tribal violence’, ‘tribal members involved in a compensation matter’ or the [Tribe 2] tribe. The Tribunal is not satisfied this is the case, and considers that the perpetrators of harm would be motivated to harm the applicant because of his brother’s actions and his relationship to his brother. The Tribunal also has concerns about the particular social groups proposed, having regard to s 5L(d) of the Act. Accordingly, the Tribunal is not satisfied the applicant meets the requirements of s 5J(1)(a), and so s 36(2)(a), of the Act.

5. The Tribunal has next considered whether the applicant meets the alternative criterion in s 36(2)(aa).

6. The Tribunal notes that 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).[6] Accordingly, for the reasons set out above, the Tribunal is satisfied that there is a real risk the applicant would face harm in the form of violent physical attack and/or murder on return to Papua New Guinea. The Tribunal is satisfied that this treatment would constitute significant harm as arbitrary deprivation of life (in the case of murder) or cruel or inhuman treatment (in the case of violent physical attack), as the Tribunal is satisfied that the perpetrators would intentionally inflict severe pain and suffering on the applicant and have an actual, subjective intention to cause this by their conduct.[7]

   [6] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323). See also the Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1.

   [7] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

7. The Tribunal is not satisfied that the applicant could relocate to another area of Papua New Guinea where there would not be a real risk he would suffer significant harm. Country information before the Tribunal indicates that those who relocate are often recognised in their new home due the presence of diaspora from other parts of Papua New Guinea, and this information will typically be communicated to their place of origin.[8] Further, it indicates that tribal conflicts often affect transmigrated populations in other parts of the country and that individuals targeted for violence will often continue to be targeted in locations to which they relocate if member of an opposing tribe are present.[9] Given the killing occurred in public and received media attention, given the Tribunal has accepted the dead man’s community is still motivated to harm the applicant, and given the applicant would necessarily have to transit through Port Moresby to any site of relocation, the Tribunal considers his return to Papua New Guinea would be noted and he would be tracked down even if he moved to a city other than Port Moresby. Accordingly, s 36(2B)(a) of the Act does not apply.

   [8] DFAT Country Information Report – Papua New Guinea, September 2022 (para 5.16).

   [9] DFAT Country Information Report – Papua New Guinea, September 2022 (para 2.31).

8. The Tribunal is not satisfied that the applicant could obtain, from an authority of Papua New Guinea, protection such that there would not be a real risk that the non-citizen will suffer significant harm. Country information before the Tribunal indicates that Papua New Guinea has one of the lowest police-to-population ratios in the world,[10]  and that the effectiveness of the Royal Papua New Guinea Constabulary is severely limited by resourcing and staffing constraints.[11] Further, information before the Tribunal suggests that many police officers are ineffective and may be disinclined to act in relation to tribal fighting offences for a range of reasons, including sympathy with alleged perpetrators.[12] The Tribunal notes DFAT’s assessment that the capacity of the police and other security forces, such as the defence force, to provide protection for vulnerable cohorts is typically severely limited and will often only be provided following a large public outcry.[13] Accordingly, s 36(2B)(b) of the At does not apply.

   [10] 'Papua New Guinea Country Security Report', United States Overseas Security Advisory Council, 27 November 2023; 'Inquiry into gender equality policies and institutions, gender-based violence

   [11] DFAT Country Information Report – Papua New Guinea, September 2022 (para 5.5).

   [12] DFAT Country Information Report – Papua New Guinea, September 2022 (para 5.5).

   [13] DFAT Country Information Report – Papua New Guinea, September 2022 (para 5.6).

1. The Tribunal also does not consider that the risk faced by the applicant is one faced by the population generally. While tribal violence is widespread in Papua New Guinea and payback is part of its culture, the Tribunal is satisfied that the applicant is personally at risk because of a specific incident involving his brother and for which he will be specifically targeted for harm. Accordingly s 36(2B)(c) of the Act does not apply.

2. Given these findings, the Tribunal has not considered it necessary to make findings about the other claims presented by the applicant at hearing.

3. 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)(aa).

DECISION

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

Stefanie Memmott
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

State, 20 April 2018 (p.22 section 6); Kopi, M, Hinton, R & Robinson, S 2010, Violence and Insecurity in the Southern Highlands of Papua New Guinea, Oxfam New Zealand (p.95).

and sorcery accusation related violence', Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment, October 2023 (p.3).