1920484 (Refugee)

1920484 (Refugee) [2024] AATA 4004 (20 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1920484
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Linda Holub
DATE:  20 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 August 2024 at 9:18am

CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea – tribal conflict – applicant lacked urgency in leaving PNG – conflicting, inconsistent and contradictory information – applicant does not have a well-founded fear of persecution –credibility concerns – not satisfied that there is a real chance that the applicant will face serious harm – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 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 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in relation to the review.

BACKGROUND

3. According to his application form the applicant was born in [year] in the village of [Village 1], Western Province, Papau New Guinea (PNG). He reads, writres and speak in Pidgin and Milpa. He claims to be a part of the ethnic Milpa Group and religiously he identifies as Christian. At the time of application, he claimed he had never been married or been in a de facto relationship.

4. According to his application, the applicant’s mother, father and one of his four brothers are deceased, whilst his three other brothers are alive living in Papua New Guinea.

5. The applicant completed primary and secondary schooling in the village of [Village 1], Papua New Guinea. In his application, he stated he lived in a village in Port Moresby from June 2010 until June 2016. From May 2014, the applicant worked in various jobs in PNG farm including [details deleted] and attended [a university] from March to May 2016.

6. At the time of application, since arriving in Australia in 2016 the applicant had not worked.

Migration history

7. The applicant arrived in Australia on [date] June 2016 having a valid FA-600 tourist visa granted on 22 April 2016 which was due to cease on [date] September 2016. He departed Papau New Guinea legally using his own passport. Following the lodgement of his Protection visa application he was granted an associated Bridging A visa on 1 May 2017 that is currently in effect. The applicant has not departed since that time.

Issues

The issues in this review are whether there is a real chance that, if he returns to Papua New Guinea, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Papua New Guinea, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Country information

The 6 September 2022 DFAT Country Information Report Papua New Guinea contains the following relevant information:

Economic overview

2.7 PNG is classified by the World Bank as a lower middle-income country and classified by the Asian Development Bank as a conflict-affected, fragile state, meaning that economic development is challenging and state capacity is limited. The country’s economy remains dominated by two broad sectors: the agricultural, forestry, and fishing sector that engages most of PNG’s labour force (the majority informally); and the minerals and energy extraction sector that accounts for most export earnings and GDP. According to the World Bank, in 2020, PNG’s GDP per capita was USD2,757, lower than its level in 2014. (By comparison, Australia’s GDP per capita in 2020 was USD51,692). PNG ranked 155th out of 189 countries, according to the UN’s 2020 Human Development Index.

2.8 PNG is a poor country. The majority of the roughly 80 per cent of Papua New Guineans who live in traditional rural communities make their living from subsistence gardens and small-scale cash cropping. According to a measure of poverty used by the World Bank, 85 per cent of the people of PNG are considered poor, due to their lack of disposable income, low level of educational attainment and low level of access to electricity. Only about 15 per cent of PNG residents have reliable access to electricity, among the lowest level in the world.

2.9 PNG’s population is very young. Around 35 per cent of the population is aged under 15 years and the median age is 22. However, most young people have limited access to education or skills training, and very limited job prospects. According to an ANU economist, PNG has been losing jobs since 2013, the year in which PNG LNG [the country’s first and largest liquefied natural gas extraction and export project] construction was completed. Furthermore, women’s substantially poorer access to health care services, lower levels of educational attainment and literacy, and cultural norms around violence and women’s roles pose significant barriers to their equal participation in economic activities.

2.10 PNG has no formal welfare system. The ‘wantok’ system, through kinship ties and social bonds, provides an informal and limited social protection mechanism during times of hardship but this system is weakening due to demographic changes (i.e. the rapidly growing population) and urbanisation. COVID−19 pushed many families back, or deeper, into poverty.

Inter-Group Violence

2.27Tensions 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.
2.28Tribal 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.
2.29Land disputes are a common catalyst for unrest in PNG. Ninety-seven per cent of land in PNG is customarily held. Conflict typically escalates from territorial disputes into violence, with some incidents being ‘payback’ for previous incidents. While inter-tribal conflict has historically occurred, especially in the Highlands region, observers suggest that such violence has become markedly worse in the last few years due to the increasing prevalence of high-powered firearms, the willingness to target the elderly, women and children, and the fact that conflict is less governed by customary law (which served to limit the extent and targets of violence) than in the past. Inter-tribal fighting often results in the destruction of communal property and services (such as health clinics, schools and transport infrastructure) and in substantial numbers of internally displaced persons. Sources report national and provincial governments are disinclined to rebuild after such destruction.
2.30Observers have suggested that increased fighting in the Highlands should be viewed as a resort to self-help through violent means, in the absence of effective government alternatives for managing disputes peacefully. Police capacity and willingness to prevent and investigate tribal fighting is typically limited (see Police). In Hela province, which has a population of 400,000 people, there are just 83 Royal Papua New Guinea Constabulary (RPNGC) officers, as noted by Prime Minister Marape in response to the July 2019 massacre. Often the RPNGC are outnumbered and outgunned by warring groups and can only intervene at significant personal risk.
2.31Inter-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.
2.32DFAT 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.

Police

The Royal Papua New Guinea Constabulary (RPNGC) is the national police force responsible for the investigation of crime and maintaining internal security in all regions of the country. At the time of independence in 1975, police services were estimated to only cover around 10 per cent of the country’s total land area and 40 per cent of the population. Since then, the size of the RPNGC has increased by only 30 per cent, while the overall population has more than quadrupled. In 2022, the strength of the RPNGC is approximately 5,500 personnel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC.
Alleged abuses of power and the use of unnecessary violence by police have been consistently highlighted by international human rights bodies. In March 2022, the 18-year-old son of a police officer was beaten severely by RPNGC officers in Port Moresby and driven about unconscious in the back of their van for hours before he was released to his family. As at the time of publication, there were no reported consequences for the officers responsible for the bashing. In April 2021, the US Department of State reported that 14 police officers had been suspended pending investigations into their alleged involvement in murders reported in Central, Western, and New Ireland Provinces in the previous two weeks.
The effectiveness of the RPNGC is severely limited by resource and staffing constraints. The police are routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. Sources reported that a trial in 2022 in Central Province for serious sexual offences against a child only went ahead because of NGO support in the form of petrol funding for the police and necessary accommodation provided to the complainant and her mother. One close observer of the RPNGC suggested that, while the full complement of police stood at around 5,500, only around one quarter of these were fully effective as police officers. RPNGC officers endure poor working and living conditions, including low remuneration; frequently need to assert themselves in violent environments, often without weapons or protection; have family/clan obligations to meet; and are generally poorly trained, particularly on human rights. Some police are also disinclined to act in response to some GBV, SARV or tribal fighting offences due to sympathy for the alleged perpetrator(s).
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.

The glossary of the report contains the following information:

“Payback and traditional ‘compensation’

‘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.

Wantokism/Wantoks

‘Wantokism’ is a system of social kinship, welfare and mutual obligation derived from PNG’s traditional tribal-based society. Wantokism affects most aspects of contemporary life in PNG, including in business and government. In the Tok Pisin language, Wantok means ‘One Talk’, referring to the language of the tribe or clan to which a person belongs. In PNG, the overall welfare of the tribe and its members is paramount. Face-to-face relationships, inter-marriage, kinship and reciprocal exchange create strong ties to keep the tribe together. At its best, wantokism operates as a social supporting mechanism that ensures those members of the tribe less able to look after themselves are supported.

In contemporary PNG, wantokism includes additional relationships, such as those between school classmates or work colleagues. People who gain a position of power or responsibility – for example, as a politician, public servant or business owner – are expected to look after their wantoks. Business people are expected to make significant contributions when traditional obligations are needed, such as compensation or ‘bride price’ payments. Senior politicians are expected to contribute even larger sums to their wantoks. Wantokism may involve state officials pressured to protect the interests of their wantoks above their legal duties to provide services or protection impartially to an individual. Officials can be reluctant to uphold the legal rights of those outside their wantok group if it requires them to act against – and especially prosecute – those within their group”.

In a publication called, The National, it was reported that the Jika and the Yamka tribes had ended years of conflict[1]. The article published on 2 January 2015 states:
[1] See: Warring tribes drop weapons – The National, accessed at on 9 August 2024

“Two warring tribes in western Highlands have finally signed a peace agreement but not to end at least 40 years of conflict between them.

It was agreed only to drop their weapons and get on with other businesses, they said.
The Jika and the Yamka tribes from Hagen electorate decided to sign the agreement on Wednesday, the last day of 2014.

They had been involved in some fierce battles that claimed many lives. The fight started in 1972 and continued for three years. It started over a piece of land and went out of control.

The peace agreement was not signed to end it but just to put aside their weapons and that into other businesses.

However, during the New Year's Eve event, the church and leaders of the tribes came together to take the first step towards peace.

The agreement was signed at the Lutheran Church ground at Ogelbeng, outside Mount Hagen city.

Hagen MP and Minister For Transport And Infrastructure William Duma witnessed the occasion. Leaders from the other tribes and church representatives attended the gathering to see the two tribes able to communicate with each other.

Jika Counsellor John Watts and Yamka counsellor Cedric Kombamang came together and cut two cakes to mark the agreement.

Watts and Kombamang said the fathers and forefathers had being involved in the fight but, with the passing of the old year, they decided to do away with that type of mentality and unite. They said that sort of mentality should die out and that it was time for people to change. They said the hard feelings and discussions over the fight were over.

Duma thanked and praised church denominations and leaders of the tribes for taking a positive step to start a peace process and to do with away with the past.

Duma said the step taken by the tribes show that his electorate was progressing. “We will progress because we are building unity, please, and harmony. This is development and I'm thankful for that because you are taking the initiative to restore peace”.

He said that peace and unity would bring good things and that should be followed by every tribe, people and family.
Dumas said unity was the key and would see better things.

“I thank all the tribes in my electorate for taking the lead in making peace. Peace and unity is one i believe in because there are the keys to finding a better life.””

CLAIMS AND EVIDENCE

Protection claims

The applicant applied for the visa on 22 November 2016.
The Tribunal has before it the Department’s file relating to the application for protection. At the time of application, the applicant did not provide any further information or evidence in support of his claims. He provided a copy of his PNG passport at time of lodgement of his visa application.
The applicant made several written claims pertaining to his application for protection. His claims are summarised in the Department’s Decision Record as follows:
·his parents are both deceased with his father passing away in February 2016.
·he lived with his three brothers in PNG before coming to Australia.
·his family have owned a farm that has been passed down through generations.
·his mother suffered mental health problems that impacted on his family as she was unable to work.
·his family has always suffered from financial hardship in PNG.
·his grandfather from the Jika tribe was a warrior and killed a Yemka family member.
·his family has suffered and been caught between tribal clashes due to his grandfather’s involvement in protecting their tribe.
·his brother [Mr A] was killed by a rival Yemka tribe in 2015.
·his brother [Mr B] has taken drugs from a young age.
·he avoided crowds and public spaces when residing in Port Moresby so that he could avoid harassment and/or harm. He would stay with church friends as means of safety.
·he was in constant fear from harm due to the tribal conflict and has been emotionally impacted from the death of his brother [Mr A].
The applicant claimed there is lack of adequate protection for him and his family in PNG as the local police authority is not only situated far from the village where they reside, the police force is not strong enough to ensure safety and protection of all villagers. Further, it is challenging to get support or help from any human rights organisations or aid due to issues of communication. He also claimed it is extremely difficult to relocate to another part of PNG. He previously attempted to leave his village of [Village 1] when he decided to travel to Moresby to work and study, however, he faced a similar situation. He stated that in in PNG, history is passed down between generations and follows you around no matter where you go. He stated his grandfather's involvement in the Jika tribe and his actions in killing Yernka members will continue to follow his family and he is unable to live in peace.
Following the applicant’s interview with the Department, the applicant provided an undated letter of support from [Mr C] stating:

the applicant’s delayed travel from Papua New Guinea was mostly due to the unrest by the student body of [his university], around the second quarter (i.e. May, 2016) which affected the normal operation in city. All business houses including government departments, schools and other institutions were closed, in fear of riot and looting. The residents stayed at home and there were restricted movement within the city.
at the University, lectures and other operations were indefinitely suspended, and movement within the main campus was strictly monitored. Most staff were denied entry to their offices. The Tourist Visa was granted around the same time, but having no access to my email he didn’t know.
due to the above reasons, travel to Brisbane, Australia was not possible during this time.
in relation to the Medical Examination Report, the government has been facing financial difficulty, thus a lot of government department offices were closed and relocated due to non-payment of office rental fee. [An organisation], (i.e. the savings organisation) has had their office closed for some time and relocated. It was during this period a lot of documents for the clients got lost. As such, the documents including the medical report (certificate) prepared to facilitate the transfer of his savings to his account cannot be retrieved, hence provided due to the state reasons.
in relation to the flight to Australia, their flights to Brisbane, was immediately booked and confirmed for travel as soon as he knew the visa was granted. Due to the applicant’s situation, he did not want to delay the travel. Getting him out of the country (Papua New Guinea) as soon as possible was my aim as I know that, this was the only way to spare his life and giving him the opportunity to live and fulfil his dreams freely which he definitely would not have back in Papua New Guinea.
the applicant belongs to the Jika tribe which have ancestral tribal conflict with a neighbouring tribe over land ownership of the land bordering of these two tribes. Tribal fights between these two tribes resulted in many lives especially of men, including boys were lost since the beginning of this conflict. The enemy murder especially young men, as pay back killing for the life lost during the tribal fights thus making it very risky for people like him to freely move around. The applicant fled to Port Moresby for safety and refuge. However, he could never stay with his relatives since the enemy was on the look out to murder him as payback.

The delegate’s decision

The delegate refused to grant the visa. The delegate found that the applicant had been untruthful, evasive and vague in his testimony of his contact with his brothers and their situation in PNG for the purposes of strengthening his claims for protection. The decision states that the finding is based on his inconsistent statements as well as the adverse findings from the financial information before the Department that indicates the applicant has forwarded funds to his brother’s in PNG. Furthermore, the delegate found the statement from [Mr C] raises further concerns given the inconsistencies it has with the applicant’s oral testimony about who he resided with in Port Moresby as the applicant claims he resided with a friend [and] [Mr C] states the applicant stayed with him.
The delegate also found the applicant’s delay in travelling to Australia raises further doubts to the veracity of his claims and noted that the applicant’s passport was issued on [date] 2019 (Tribunal note: it was in fact issued on [date] 2014. The Tribunal considers this may be a typographical error as the passport expires on [date] 2019) that further adds to the concerns that the applicant lacked urgency in his attempts to flee harm in PNG and that if he was at an imminent risk of harm as claimed, that he would have made a greater attempt in leaving PNG sooner. The delegate found the applicant’s intentions to travel to Australia for work and study on a tourist visa cumulatively adds to doubts to the credibility of the applicant’s overall claims for protection.
Have considered the country information in relation to the applicant’s claims for protection, the delegate did not find it credible that there is an existing intertribal conflict between the Jika and Yemka tribe or that the applicant or his brothers have been targeted by members of the Yemka Tribe. The delegate was not satisfied that his brother [Mr A] was murdered as a result of an existing conflict between the Jika and the Yemka tribes. This is underpinned by the finding that the applicant lacked urgency in leaving PNG, that his intentions were to work and study in Australia and that his brothers have continued to reside in PNG, and in their family house in the [Village 1] village
The delegate was not satisfied that there was a real chance that, if the applicant was returned to Papua New Guinea, he will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the applicant was not a refugee as defined in s 5H and the criterion in s 36(2)(a) of the Act was not satisfied. Similarly, the delegate was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Papua New Guinea, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act.. Consequently, the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or in s36(2)(aa) of the Act.

Applicant identity and country of reference

The applicant claims to be a citizen of Papua New Guinea. The applicant provided the Department with a copy of his PNG passport issued on [date] 2014. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.
The Tribunal finds that the applicant is a citizen of Papua New Guinea which is also his receiving country for the purposes of the refugee and complementary protection assessments.

Review application

The applicant applied to this Tribunal for a review of the delegate’s decision on 26 July 2019. He provided a copy of the delegate’s decision.
On 11 September 2023, the applicant provided to the Tribunal:

a letter of support from his partner, [Ms D] dated 12 May 2023 stating they became a couple around November 2017 and have been in a relationship since then. It states they purchased a home [and] were in the process of renovating it. It also outlined some of his work and study history since his arrival in Australia.
a letter of support from Rev. [name] of [a named] Church dated 17 September 2023. It states that he has known the applicant since April 2017 and refers to the applicant’s participation in a volunteer program supporting young men with disabilities. It refers to the applicant’s move to [a town] where he found work with [a company] and touches on the fact the applicant was the subject of bullying and discrimination. It states that he later started working as a sub-contractor with [a company] and vouchers for the applicant’s good character.

The applicant was invited to appear before the Tribunal on 12 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his partner who also attended the hearing and a number of friends who provided evidence by telephone.

Pre-hearing submissions

On 1 August 2024, the applicant submitted the following:

he and his partner aspire to further contribute to society by either adopting children or becoming foster carers, with the goal of supporting children and youth who have been abused and disengaged from their families.
he can no longer afford legal representation for the hearing due to significant financial hardship. He recently secured employment after dedicating the entirety of 2023 to full-time studies. This situation has placed a considerable strain on his financial resources.
in 2023, he successfully completed [a qualification]. He secured a position with [a workplace] early June 2024. In his current role, he [does specified work]. This position has allowed him to apply his skills and knowledge in [a field] to assist and empower vulnerable individuals in the community.
family members, [Mr A] and [Mr E] were killed on 15 November 2013, and 17 June 2018 respectively. Both men were murdered by unknown assailants. His family believes they died as the hands of enemy tribes and such acts from their enemy will continue in the future even though we have not retaliated against them.
due to the ongoing unrest and instability in the Mt. Hagen area and nearby villages, it has been extremely challenging to obtain police records or official documentation of their deaths. His attempts to communicate with the Provincial Police Commander of Mt. Hagen have been unsuccessful due to numerous hindrances and the volatile situation in the region. He does not know how he will be able to produce the required documentation when the Police Commander makes himself unavailable and there is no other way to secure any documentation from the police force.
he is deeply concerned for his safety and the safety of his remaining family members. The threat from enemy tribes makes it dangerous for him to return to Port Moresby or Mt. Hagen. His brother [Mr F], who resides in Port Moresby, lives in constant fear for his life. He has expressed that he is always looking over his shoulder, fearing an attack. [Mr F] is willing to serve as a witness to further substantiate his case and provide additional details about the threats and dangers they face.
he and his partner were advised by their solicitor that due to his status on his current visa, they were not eligible to apply for a Partner visa. However, they recently received information that this is not the case and were informed that they were always eligible to apply for a Partner visa. This conflicting information has caused significant distress and mental health concerns for them and given their current financial situation, are not in a position to pursue the necessary legal avenues to address this issue at this time.

As noted, in the applicant’s submission he is no longer represented in relation to his application for review.

CONSIDERATION OF CLAIMS AND EVIDENCE

Oral evidence

I referred to the applicant’s hearing response in which he wrote that when he is stressed he cannot concentrate on what is being said. He wrote that he was severely bullied at his previous employment and because of that he becomes agitated or shuts down and is not able to respond. He also wrote that he has difficulty remembering dates, times and timelines and events. He stated that he has always had difficult as it is something not culturally familiar.
The applicant stated his application was prepared with the assistance of his then migration representative. He stated he knows what was written but did not have a copy of his application He stated he has a new claim: referring to the death of [Mr E]. I indicated that from my understanding he is claiming that another person died from the same tribal conflict, but his fear of harm is the same. The applicant confirmed this.
The applicant stated his wife wrote the statement that was provided to the Tribunal as a pre-hearing submission. He stated they are not married but live together.
After much discussion, the Tribunal was able to ascertain that [Mr A] and [Mr E] are cousins of the applicant and not his brothers. Their father and that of the applicant were brothers. He stated [Mr A] lived with his family, so they were very close which is why he referred to [Mr A] as his brother in his application. The applicant stated that his actual brothers are [Mr B], [Mr G] and [Mr F]. He stated that [Mr F] was adopted to another tribe and went to live in Port Moresby with his adopted family a long time ago. He stated there has been a breakdown in communication with [Mr G] and he is not sure where he is but, he believes he might be in Port Moresby. He stated that [Mr B] is still struggling with drugs (mostly marijuana) and lives in the village.
I explained to the applicant that I was concerned that he misrepresented the relationship between himself and [Mr A] in his application. I noted that the form asks for information about siblings. He responded that they had a very close connection and he regarded [Mr A] as a brother.
Moving on to discuss his claims, I told the applicant that I understand and accept tribal violence occurs in Papua New Guinea, that it can be generational and that increasingly modern weapons are being used.
I asked him if he is aware of a peace agreement between the Jika and Yemka tribes. I read him the article from The National referred to in paragraph 19 and I also told him that I was unable find anything further about the conflict between the two tribes. When asked if he wished to comment, he responded that he had no idea of this agreement. He stated that peace and safety are needed and without them people struggle to live. However, he stated that that unfortunately due to circumstances sometimes security and peace do not exist in his society and that one reason is poverty.
In relation to what harm, he experienced before he departed Papua New Guinea, he stated that it was the fear of harm and always being aware of his surroundings and people around him. He stated he always carried that fear.
In relation to what harm he fears if he were to return to PNG, he stated that you think it’s okay and there will be nothing happening but all of a sudden they can come. He stated anyone can come and kill him. He stated that his fear of harm comes from his previous enemies (the opposing tribe) who could target him at any time as an act of revenge.
In relation to the death of [Mr A], the applicant stated he was killed in Mt Hagen. He gave evidence that he was hit in the head from behind. I asked him how he knows [Mr A] was killed by the opposing tribe. He stated this is what he believes looking at the history. He again referred to poverty being a driver of violence, and the fact that the Jika and Yemka tribes have a history of fighting. He stated they always target men in their prime and he strongly believes he will be targeted.
We discussed the timing of the death of the applicant’s parents. He stated his father passed away in 2012 or 2010 and his mother passed away passed away about a year or so earlier. I noted that that this was inconsistent with information contained in his Statutory Declaration submitted to the Department at the time application, which states that “his father passed away in February 2016 and his mother passed away two years earlier in December 2014”. He responded that his father did not pass away in 2016. He stated it was quite a long time before he came Australia. He stated that he remembers he was without his father for about two to three years before he came to Australia and his mother died a year or two before.
We also discussed the timing of when he relocated [to] Mt Hagen. I noted that in his applicaion he had written that he lived in Port Moresby from June 2010 but that the in the delegate’s decision, it was recorded that he told the delegate he went there in 2012/2013. The applicant stated that he stuggles with dates. He stated he was bullied and was called names that impacted on his life. His mind was filled with rubbish.
The applicant repeated that he would be targeted if he returned to PNG, and it could be harmed anywhere in PNG. He stated revenge goes deep and when they target someone, they go for it.

Evidence provided by the applicant’s witnesses

I told the applicant that I would call the witnesses he nominated, including his brother [Mr F] and his friend [Mr H], who reside in Port Moresby and [Ms I] who lives in Melbourne.
I asked what evidence they are likely to provide. He responded that they know the situation in PNG and that people struggle to go out publicly and that there is trouble everywhere and that he would not be safe and that his safety is not guaranteed in PNG.
In relation to [Mr F], the applicant stated he speak with him about once a month and was unsure when he last saw [Mr F]. He thinks he told him he was studying but not in any detail. The applicant stated that he does know how old [Mr F] is; possibly 20-24 years younger than him.
The Tribunal made three attempts on the two numbers provided by the applicant, for his brother [Mr F] but was unable to reach him.
The applicant told the hearing that [Mr H] lives in Port Moresby and is a church friend. He stated his had [a] job but is not sure what he’s doing now. he stated that he does not speak with him often and thinks he has spoken with him about two to three times since he was in Australia in 2016.
[Mr H] stated that he knows the applicant from the time they did fellowship together and has known him for more than 10 years. He stated that the applicant comes from the Western Highlands. [Mr H] stated that would be dangerous for the applicant to return to his province because of some problems his family has had as a result of tribal fighting. He stated two of the applicant’s brothers were killed and for him to return to PNG would be a problem. He stated the applicant’s family is not together, some live in town and others are scattered.

[Mr H] stated that he is from the Southern Highlands, and I noted there has been a lot of tribal conflict in that province and asked him why this is not an issue for him. He responded that trouble does not occur with all clans, it depends on the clan or tribe. When asked if the applicant could live in Port Moresby he responded that your enemies could follow you everywhere.
I asked [Mr H] how often he and the applicant speak with each other. He responded that they speak about once a month or about every two, three or four months.
Following the call with [Mr H], I told the applicant that I have a concern with the inconsistent evidence provided regarding the frequency in which the communicate with each other. I referred to the fact that [Mr H] had given evidence that they speak several times a year whereas the applicant had informed me that they had spoken that since 2016 they had spoken only two or three times. When asked if he wished to comment, the applicant stated that communication can be a bit difficult. He stated that he does call him but not often. He stated that as far as he what he remembers they had spoken about two to three times since he came to Australia.
In relation to Ms [I], the applicant stated that they only met in Melbourne through other friends. He stated she is from Mt Hagen but married outside the tribe. He then stated they went to the same church in Mt Hagen but did not really know each other.
Ms [I] stated that she knows the applicant from their church group in Mt Hagen, but they became friends in Australia. She stated the applicant is from Jika tribe in Mt Hagen. She stated that she knows his family has been affected by tribal fighting in PNG. She stated that in his area there was a severe battle where his two brothers got shot. She stated “trouble fighting” happens. When asked why it was not an issue for her family, she responded she was married to another tribe and had different problems. She stated its impossible to go out late because they gun you done. When asked why the applicant would he be targeted, she responded that tribal fighting keeps happening. She stated that if he goes back he will targeted as the land dispute is still ongoing even though no one lives on the land.
I put it to applicant the inconsistency in evidence provided by him and Ms [I]. Ms [I] had given evidence that both [Mr A] and [Mr E] were shot whereas he had told me that [Mr A] was hit in the back of the head. I told him that the fact of this inconsistency raises concerns for me and gave him an opportunity to respond. He stated that she heard the story differently. I put it to him the versions of how his cousin [Mr A] died, are clearly different and explained that when such inconsistencies arise in evidence it appears that what is said cannot be relied upon and it raises concerns for me. He responded that he cannot control what other people say.
The applicant’s defacto partner [Ms D] who attended the hearing also gave evidence. She confirmed that what she knows of the situation in PNG is from the applicant or his brother, [Mr F]. She stated tribal fighting occurs in PNG. She stated the applicant has lost his brothers and that they were killed brutally after which he had to flee to a safer area. She stated he is constantly looking over his shoulder and that he also does this in Australia because he feels vulnerable in the open. She stated he constantly fears for [Mr G] and [Mr F] and worries about their safety and his own.
I discussed with the applicant my concern that [Ms D] had claimed that he fled Mt Hagen because [Mr A] and [Mr E] were killed, but that based on the evidence before me he had moved to Port Moresby some time prior to [Mr A]’s death. The applicant acknowledged that [Ms D]’s evidence was not correct. He confirmed that he relocated to Port Moresby to find better opportunities before [Mr A] was killed and that [Mr E] was killed when he was in Australia. However, he stated that [Mr A]’s death made him realise the risks. He stated that he could be targeted if he were to return to PNG as a revenge killing.
I also referred to the fact that [Ms D] gave evidence that he does not feel safe in Australia and constantly looks over his shoulder. I put it to him that in view of this, it would appear that Australia is also not safe for him. He responded that [Ms D] has observed him checking his surroundings because this is what he had to do for a long time and is used to doing it. He stated he feels safe in Australia and is grateful for the opportunities he has had here.
I asked the applicant why he would not be able to go to the police and report any concerns he had of potential harm. He responded that there is a police force in PNG, and he could make a report but that it is not like it is Australia. He stated they lack the necessary skills and resources sometimes they don’t respond. I discussed the country information referred to above from the DFAT report and acknowledged that it indicates deficiencies in the protection available.
I told the applicant that I accept there is tribal violence in Papua New Guinea and that there was a long-standing conflict between the Jika and Yemka tribes. I told him that the independent information before me indicates that there was a substantial move towards a settlement and there no evidence that the conflict has continued. I noted that he made claims in respect of the death of his cousins [Mr A] and [Mr E]. I put to the applicant that his own brothers have not been harmed. He responded that his safety can’t be guaranteed. I referred to the fact that he previously lived in Port Moresby for several years, although he has given differing accounts of how long he lived there. He stated he lived there for less than five years and stated that he does not know where he would return to. He added that it is an unfortunate situation.
When asked if had anything to add, the applicant responded that he is truly humbled that the people of Australia have given him freedom, safety and a job. He stated he came to Australia without anything and has been able to run a small [business], as well as [specified work] and more recently obtained a [qualification].
I put it to the applicant that this experience and training would potentially be helpful if he were to return to Port Moresby. He responded that there is no [such] work, and he will not be able to utilise the [qualification]. He stated there are no jobs for him to find in PNG. He stated he found his purpose in Australia, that is, to [do specified work]. He stated he is currently [doing specified work].

FINDINGS AND REASONS

The Tribunal is prepared to accept that the applicant is from the Jika tribe from the Western Province of Papua New Guinea and accepts that there was long-standing conflict between the tribes and am prepared to accept that people died as a result of that conflict. The Tribunal also accepts ‘payback’ occurs and that this can be generational.
Based on the article from The National referred to, the Tribunal accepts that there was a significant step at the end of 2014 towards ending the conflict.
While I did not attach a negative inference to the fact the applicant provided inconsistent evidence regarding the timing of various events, overall, his evidence was vague and insufficiently detailed. Additionally, the Tribunal is concerned about the conflicting evidence provided by the applicant and all of his witnesses and his explanations for those inconsistencies did not satisfy the Tribunal that the oral evidence was credible. Therefore, the Tribunal was not convinced that the applicant’s cousins [Mr A] and [Mr E] died as a result of tribal fighting nor that the applicant will be targeted if he were to return to PNG.
In relation to the inconsistent evidence provided by [Mr H] and the applicant regarding how often they speak with each other, the Tribunal does not accept the applicant’s explanation that he only recalls speaking to [Mr H] two to three times since he arrived in Australia despite [Mr H]’s evidence that they speak every month, or every second or third month. While this evidence is not central to the claims, it appears to indicate that on questions they may have anticipated they collaborated on how [Mr H] should respond but on questions they may not have anticipated, they did not do so. This undermines the reliability of [Mr H]’s evidence regarding the risk of future harm if the applicant were to return to PNG.
In relation to the inconsistent evidence provided by Ms [I] and the applicant, the Tribunal notes the applicant’s explanation that he cannot control what other people say. The Tribunal accepts this is the case but is of the view that given the applicant’s often repeated claims about his fear of living in PNG and that this is in part related to the death of family members, he would not only have shared the fact of their deaths with Ms [I] but also the manner in which they died. This inconsistency regarding [Mr A]’s death is significant and undermines the veracity of the evidence.
In relation to the inconsistent evidence provided by [Ms D] and the applicant, the Tribunal notes the applicant acknowledged that he did not leave the highlands as a result of [Mr A] and [Mr E]’s death. However, the fact of [Ms D] claiming the applicant did so, causes the Tribunal to doubt the evidence provided.
Considering the totality of the evidence provided, Tribunal is left with residual concerns which raises doubts regarding the reliability of the evidence and therefore, the basis of the applicant’s claims that he would be targeted by the enemy tribe if he were to return to PNG.
The Tribunal has also had regard to the fact that the applicant claimed that he would be always living in fear. The Tribunal accepts that the level of violence in various parts of the country is high at various times and that the applicant may feel less safe than he would living in Australia.
The Tribunal notes the fact that the applicant had not lived in the Western Highlands for approximately five years (although his evidence of when he moved to Port Moresby varies) prior to his arrival in Australia in 2016. The Tribunal also has had regard to the fact that he did not claim he would have to return to the village of [Village 1]. The Tribunal finds that the applicant is likely to have a choice about where he returns to and decides to reside. The Tribunal accepts that his circumstances would be more difficult than his current situation in Australia and the level of fear higher but does not consider that this constitutes serious or significant harm.
The Tribunal accepts that the applicant has applied himself in Australia and is grateful for the opportunity to have done so.

CONCLUDING PARAGRAPHS

On the available evidence the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reason of his race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to Papua New Guinea. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Papua New Guinea. Therefore, he does not satisfy the criterion at s.36(2)(a) of the Act.
The Tribunal has also considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Papua New Guinea, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore he does not satisfy the requirements of s.36(2)(aa) of the Act.

DECISION

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

Linda Holub
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

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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.
…

[2024] AATA 4004

20 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness