1921574 (Refugee)

[2023] AATA 3191

1921574 (Refugee) [2023] AATA 3191 (25 June 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1921574

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:  Wayne Pennell

DATE:  25 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies section 36(2)(a) of the Migration Act.

Statement made on 25 June 2023 at 2:04pm

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – political opinion – land dispute – alleged murder – physical assault – payback system – fear of killing – attack on home – internal relocation – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a Delegate of the Minister for Home Affairs (‘the Delegate’) to refuse to grant the Applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1] The Delegate’s decision was provided to the Applicant on 19 July 2019

2. The Applicant claims to be a citizen of Papua New Guinea (‘PNG’) and applied for a Protection visa.[2] When assessing the application, the Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to PNG, there was a real risk he would suffer significant harm. Therefore, the Delegate refused to grant the visa[3] on the basis that he was not a refugee as defined by the Act[4] and he was not a person in respect of whom Australia has protection obligations.[5]

   [2] The Applicants’ application was received by the Department on 21 December 2018.

   [3] The Delegate’s refusal was made on 19 July 2019.

   [4] Migration Act 1958 (Cth), s 5H.

   [5] Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).

1. The Applicant filed an application with the Tribunal for a review of the Delegate’s decision.[6] At a subsequent time, the Tribunal wrote to the Applicant advising him that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone.[7]

   [6] The Applicant’s application was filed on 5 August 2019.

   [7] The Tribunal advised the Applicant on 1 June 2023.

1. The Tribunal invited the Applicant to attend an in-person review hearing scheduled for 23 June 2023. He responded to that invitation[8] and attended the hearing at the time, date and place of when it was scheduled.

[8] The Applicant returned the hearing invitation form to the Tribunal on 12 June 2023.

CRITERIA FOR A PROTECTION VISA

1. The measures for a Protection visa are set out in the Act[9] and Schedule 2 to the Migration Regulations 1994 (Cth). An Applicant for the visa must meet one of the alternative criteria as provided in the Act.[10] That is, the Applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.

   [9] Migration Act 1958 (Cth), s 36.

   [10] Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

1. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]

   [11] Migration Act 1958 (Cth), s 36(2)(a).

2. 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.[12] 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[13].

[12] Migration Act 1958 (Cth), s 5H(1)(a).

[13] Migration Act 1958 (Cth), s 5H(1)(b).

1. The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]

   [14] Migration Act 1958 (Cth), s 5J(1).

   [15] Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

1. If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]

[16] Migration Act 1958 (Cth), s 36(2)(a).

[17] Migration Act 1958 (Cth), s 36(2)(aa).

[18] Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

1. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]

   [19] Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

1. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]

[20] Migration Act 1958 (Cth), s 36(2B).

COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

1. The Applicant claims to be a PNG citizen and provided a copy of his passport to authenticate this claim.[21] The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that PNG is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]

   [21] The Applicant’s passport was issued in Papua New Guinea [in] 2016.

   [22] Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

1. Based on the evidence, the Tribunal is satisfied the Applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[23]

[23] Migration Act 1958 (Cth), s 36(3).

MANDATORY CONSIDERATIONS

1. In accordance with Ministerial Direction No. 84 made under the Act,[24] 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.

[24] Migration Act 1958 (Cth), s 499.

CONSIDERATION OF THE APPLICANT’S CASE

1. The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to PNG, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[25]

   [25] Migration Act 1958 (Cth), s 36(2).

1. The mere fact that the Applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the Applicant to satisfy the Tribunal that all the statutory elements are made out.

1. The Tribunal is not required to make the Applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the Applicant.[27]

APPLICANT’S BACKGROUND AND CLAIMS

[26] Migration Act 1958 (Cth), s 5AAA.

[27] MinisterforImmigrationandEthnicAffairsvGuoWeiRong (1997) 191 CLR 559, 596; ReBineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

Background

1. At present, the Applicant is aged [age] and is employed on a full time basis in Brisbane with a company engaged in [specified services]. He is a citizen of PNG and was born in Mt Hagen, however his parents lived in [Village 1] which is in the [District 1] in the Southern Highlands of PNG. He identifies as belonging to the [Clan 1] on his mother’s side, and the [Clan 2] on his father’s side.

2. His mother passed away when he was very young and he was sent by his father at very young age to be raised by his aunty in [Town 1]. Before relocating to [Town 1], he had already completed [grades] of his schooling in his home village. He completed the remainder of his schooling in [Town 1], graduating [grade] in [specified year]. He described his time living with his aunty and her husband in [Town 1] as not being pleasant. He was mistreated by his aunty and her husband and he thought that this sometimes affected his schooling.

1. When he finished school, he could not get entry into any colleges or universities to further his education, so he moved down to Port Moresby. For quite some time he was unemployed and to survive he sold products and goods in the street, as well as at the markets. Eventually he managed to find full time employment as [an occupation 1] for a [company]. He was working for that company for about two years before he travelled to Australia.

1. He was married in PNG. He and his wife had a customarily marriage and they have a son who is [aged]. At present this child still lives in PNG with relatives. In 2017, his wife moved to Australia and she applied for a Protection visa.[28] She had her own separate protection claims which differ greatly from his claims. He explained that her claims related to her uncle arranging a forced marriage between his wife and another person.

   [28] Tribunal’s Case No. 1913244 affirmed on 30 May 2023.

1. The Applicant explained to the Tribunal that he travelled twice to Australia in 2018. When he arrived for the first time in July, he and his wife reunited. They now have [another child], [details deleted]. He said that it was never his intention to permanently stay in Australia, he just wanted a holiday and ‘to see’ Australia. He stayed for approximately three months before returning in early October.

1. He was only back in PNG for approximately two weeks before he made his second trip to Australia. His claims for protection relate to that trip, and those claims are discussed below.

Claims

1. The Applicant claimed that he had to leave PNG because his life was in danger. He said that he had been accused of being involved in the death of [Mr A] who was murdered in [Town 2] on [a day in] October 2018. [Mr A] is also known by the names of [names].

1. The crux of the Applicant’s claims relates to a land dispute between him and [Mr A], [Mr A's] family and his tribesmen. [Mr A] was a prominent businessman in that province and neighbouring provinces was brutally murdered several months after the land dispute. Because he had that dispute, members of the deceased’s family accused the Applicant of orchestrating the murder of [Mr A] and they are seeking retribution, or what is commonly known as ‘payback’.

1. In January 2018, the Applicant learnt that [Mr A] was planning to build a [business 1] on a vacant block of land on the approach road into [Village 1]. The Applicant considered that the block of land customarily belonged to his family. The Applicant travelled to his home village of [Village 1], arriving on [a day in] January 2018. He confronted [Mr A] and they argued about the ownership of the vacant land. The Applicant said that because he was stopping [Mr A] from building the [business 1], in retaliation [Mr A] ordered his tribesmen and members of his family to assault the Applicant. The Applicant said that he was severely assaulted, as well as being cut with a machete on his back and on his leg. When he was being assaulted he recognised two of [Mr A’s] brothers are being amongst the group that assaulted him.

1. The Applicant told the Tribunal that after he was assaulted he made it known to [Mr A] and his brothers that they better not come down to Port Moresby because if the Applicant saw them there would be payback for assaulting him.

1. The Applicant also claimed that he went to [a named] hospital and his injuries were treated. He reported the assault to the [local] police, but they did not take any action because [Mr A] was a respect businessman and had several businesses in PNG, mainly in Port Moresby, [Town 2] and Lae. Because he had lots of money, most of the police know him personally and the Applicant considered that the police let him walk away freely without being charged. Although he did not provide any corroborative evidence of these things, the Tribunal accepts that he was injured and treated for those injuries; and that he had reported the assault to the police. The Tribunal also accepts that since that incident, he has never returned to [Village 1].

1. To support his claim about the incident at [Village 1] [in] January 2018, the Applicant provided evidence from [Ms B]. She does not have any familial connection to the Applicant. Her evidence to the Tribunal was by telephone from [Village 1]. She said that for over six years, she has been on the committee of the [Village 1] Court. She is also a [worker at a local agency].

1. She confirmed the Applicant’s evidence that on [the day in] January 2018, there was a conflict between [Mr A’s] brothers and the Applicant over a piece of land which [Mr A] and his brothers had cleared. She also confirmed that [Mr A’s] family intended to build a [business 1] on that land. It was [Ms B’s] evidence that during the altercation a fight broke out between the Applicant and [Mr A’s] brothers which led to the Applicant sustaining severe injuries.

1. [Ms B] told the Tribunal that she could confirm that after the Applicant returned to Port Moresby, no further action was taken by the village court or the land mediators to settle the dispute between him and [Mr A]. She said therefore, the land was still in dispute and no further development has taken place on the land to this date, and the land is still vacant.

1. [Ms B] also told the Tribunal that she was aware that [Mr A] was murdered. It was her evidence that after his death, [Mr A’s] brothers were looking for the Applicant and were asking about him in the village. Although she did not know the exact reasons for them asking about the Applicant, she was of the view that it related [Mr A’s] death and the land dispute he had with the Applicant.

1. The Tribunal finds that [Ms B] was an impressive, credible and reliable witness. The Tribunal accepts her evidence and finds that she corroborates the claims made by the Applicant in respect to the land dispute he had with [Mr A], and that an alteration occurred on [the day in] January 2018 whereby [Mr A] and his family were involved in assaulting the Applicant over that land dispute.

1. The Applicant told the Tribunal that he returned to Port Moresby and subsequently applied for a Visitor visa. That visa was granted on 27 March 2018 and it ceased on 16 January 2019. He later travelled to Australia to see his wife, arriving [in] July 2018. Because it was his first time in Australia, he wanted to experience as many different places as possible, and he just wanted to have a holiday and then return to PNG. He said that it was always his intention to live in PNG because that is where his son is, and he had a good job. He stayed in Australia until [October] 2018 before returning to Port Moresby.

1. He described to the Tribunal that he was only back in Port Moresby for about two weeks when on [the day in] October 2018 the news ‘exploded’ on [social media] about the murder of [Mr A]. He read about how [Mr A] had been chopped to death by a machete and stabbed with a screwdriver. The Applicant told the Tribunal that he was not connected in any way with his death.

1. The Applicant claimed that the following day he received a concerning and threatening text message on his mobile telephone. He was at work when he received the message, and the message accused him of being involved in [Mr A’s] death and it told him that he will be the next one. Notwithstanding that does not know who sent the message to him, he nevertheless took the message to mean that he would be the next person to be killed.

1. When asked that if he did not know this person, then how could have this person obtained his mobile telephone number. The Applicant’s evidence at the hearing was that although he does not personally know the person who sent the message to him, it is not difficult for someone in PNG to find out what his mobile telephone number was. He said that Port Moresby was not all that big, and he knows of many people from his home village who are living in Port Moresby, and any of them could have easily provided his number to someone else.

1. In respect to the text message, he said that he took the message to mean that he was going to be the next person to be killed. When asked by the Tribunal whether he still had that message, he said that it was on old phone he had in PNG. When he came to Australia he updated his phone and bought a new one. He no longer has that old phone or access to the message. The Tribunal accepts this to be a plausible explanation.

1. When considering the credibility of his evidence about the text message, the Tribunal weighs that against his evidence about the events of [the day in] January 2018 in [Village 1] and his altercation with [Mr A]. The Tribunal finds that his claims about that particular event are credible, and the same view is held by the Tribunal in respect to his claim about the text message.

1. The Applicant also told the Tribunal that on the same day that he got the text message, his neighbour telephoned him to say that some people had come to his residence and smashed in the door looking for him. He asked his neighbour if they were still there, and was told by his neighbour that they had left. He then went home and saw that the door to his residence had been busted open and everything inside his room was destroyed.

1. He then packed up his personal belongings and went to a friend’s house where he stayed the night. Using the little funds which he had saved, he purchased an airfare and the following morning he travelled to Australia. The Tribunal is satisfied that he did travel on that occasion as his arrival accords with his travel records held by the Department which shows that he arrived [in] October 2018.

1. In respect to the timing of when he lodged his application for protection with the Department, the Applicant’s evidence was that he was well aware of what a Protection visa was when he arrived in Australia because his wife had applied for protection. Although he arrived soon after being threatened, and notwithstanding he was certainly concerned about the threatening text message and the unwanted visit to his residence, he did not think that there was a need to make the application at that point. He explained that he had nothing to do with [Mr A’s] death and knew absolutely nothing about it. He was certain that it would not be very long before the person or persons involved would be apprehended and [Mr A’s] family would realise that the Applicant was not involved.

1. Notwithstanding that, as time went by, he saw many posts made on [social media] by either [Mr A’s] family, or by people connected to [Mr A] which spoke about retribution for his death. He then realised that no person had been held accountable for [Mr A’s] death and that he was at risk of being harmed if he returned to PNG. The Applicant realised that because of the earlier dispute he had with [Mr A], his relatives and the tribesmen were after him because they thought he was the person responsible for [Mr A’s] death. The Applicant said that there were posts made on social media about houses being burnt down, crops being cut down and tribesmen carrying high powered weapons blocking off the main highway wo were looking for those involved in [Mr A’s] death. The Applicant provided some of those posts to the Tribunal, and that evidence is accepted as it corroborates his claims. He also confirmed that he saw those posts on social media about a week before he made his application for protection.

1. The Applicant claimed that if he returned to PNG, because he was blamed for [Mr A’s] death, he will be killed by [Mr A’s] family and tribesmen. He went on to claim that they will never give up and are still looking for him. For those reasons, it is not safe for him to return to PNG because the payback system covers all across PNG.

1. Returning to discuss the Applicant’s evidence about the damage to his residence in Port Moresby, the Tribunal was provided with a letter from [Mr C]. He resides in Port Moresby and had known the Applicant for about two years as he was the Applicant’s landlord, as well as his supervisor at work. [Mr C’s] letter stated that on the [day in] October 2018, he received a telephone call from another tenant. That tenant was the Applicant’s neighbour. That tenant told him that some men in a [specified vehicle] came to the premises. To find out where the Applicant lived, they pretended to be the Applicant’s relatives. The tenant showed them where the Applicant lived, and upon finding that he was not home they got a machete from their car and broke the front door down and then destroyed the room.

1. [Mr C] said that when he received the call from the Applicant’s neighbour, he immediately went to the premises. He saw that damage had been caused to the premises occupied by the Applicant. He then went to the local police station and reported what had happened. He also phoned the Applicant and advised him to find another rental place because his property had been damaged and other tenants and their families were in fear because of what happened.

1. Attempts were made to take oral evidence from [Mr C]. However, although he was able to be reached by telephone the reception did not allow the Tribunal and him to communicate effectively.

1. The Applicant had provided the Tribunal with a police report from [Officer A] of the Royal PNG Constabulary. He gave personal evidence to the Tribunal by telephone from PNG. He told the Tribunal that he is a [supervisor] at [Police Station 1] and he confirmed that on [the day in] October 2018, he was on duty when [Mr C] reported the damage to the premises. The Tribunal accepts the evidence of [Officer A] and finds that it corroborates the contents of the letter provided by [Mr C]. When carefully assessing the evidence of [Officer A] and the letter from [Mr C], the Tribunal apportions them significant weight in respect to the final determination of this matter.

1. Overall, the Tribunal found the Applicant to be a generally credible and the Tribunal recognises that where a decision maker finds an applicant to be generally credible, they should be given the benefit of any doubt where they are unable to fully substantiate all of their claims.[29] Notwithstanding that, when carefully considering the facts, circumstances and the evidence of the Applicant’s case, the Tribunal was afforded the opportunity to monitor the Applicant’s responses to the Tribunal’s analysis of the evidence, and to gauge the genuineness, and the credit attributable to the responses he provided during the review hearing. Therefore, the Tribunal finds that the Applicant’s claims have independently been validated by probative and corroborative evidence received from the witnesses mentioned in these reasons.

[29] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

Country information

1. The DFAT Country Information report for PNG provides that payback, or traditional compensation, is an act of retaliation that is usually carried out when one group has been harmed by another.[30]

   [30] The DFAT Country Information report, Papua New Guinea, 6 September 2022, page 2.

1. It is claimed by the Applicant that [Mr A’s] family and tribesmen are seeking retribution through the payback system. The DFAT report provides the following information in respect to ‘payback’ in PNG:

The DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG. The basis for this is that tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.

Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced.

Land 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 than in the past. Inter-tribal fighting often results in the destruction of communal property and services, including 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.

Observers 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. 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.

Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there.[31]

[31] The DFAT Country Information report, Papua New Guinea, 6 September 2022, page 12, paragraphs 2.27 to 2.32.

REFUGEE FINDINGS

1. The Tribunal has given careful consideration to the Applicant’s claims specifically outlined in his application, along with consideration whether there is a real risk that he would suffer significant harm if he returned to PNG. He said that because he had a land dispute with [Mr A], there is a perception by [Mr A’s] family and his tribesmen that the Applicant was responsible for [Mr A’s] death, and therefore retribution by way of payback is a real possibility if he returned to PNG. He also said that relocation within PNG for protection is not an option as payback applies right across PNG.

1. For the reasons already identified above, the Tribunal accepts that the Applicant and [Mr A] were involved in a land dispute in 2018, and that dispute was over a vacant block of land in the village of [Village 1]. The Tribunal also finds that the Applicant was severely injured from being assaulted by [Mr A’s] family members and his tribesmen, and that the Applicant made reference that if he saw [Mr A] or members of his family in Port Moresby, then the Applicant would be after payback.

1. The Tribunal is also satisfied that the evidence confirms that [Mr A] is deceased, and that his family and his tribesmen perceive that the Applicant is responsible. The Tribunal accepts the Applicant’s evidence that he was threatened with payback in Port Moresby when he received the text message, and his residence was damaged.

1. In conclusion, the Tribunal finds that if the Applicant was to return to PNG, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm from [Mr A’s] family and or his tribesmen.

1. Therefore, the Tribunal accepts that the Applicant is a refugee as defined in section 5H of the Act, and he has satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies section 36(2)(a) of the Act.

Wayne Pennell Senior Member

ATTACHMENT - Extract from Migration Act 1958 (Cth)

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.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)   the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…