1921944 (Refugee)
[2022] AATA 5233
•19 December 2022
1921944 (Refugee) [2022] AATA 5233 (19 December 2022)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER: 1921944
COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Jason Pennell
DATE OF DECISION: 19 December 2022
DATE OF CORRIGENDUM
:5 April 2023
PLACE OF DECISION: Melbourne
AMENDMENT: The following corrections are made to the decision:
- At paragraph [13], replace the words ‘Malaysia’ with the words ‘Papua New Guinea’.
Jason Pennell
Senior Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1921944
COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Jason Pennell
DATE:19 December 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – religion – Baptist – particular social group – landowner – land situated on mineral deposits – dispute over land ownership – applicant suffered harm in the past in PNG – fear of serious harm in the event of returning to PNG – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1),5H, 5J, 5K-LA, 36, 65, 116, 189, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423
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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Papua New Guinea, applied for the visa on 10 January 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa).
The applicant was invited to a hearing at the Tribunal on 2 November 2022, for appearance on 14 November 2022. The Tribunal notes that there was a delay in confirmation of the availability of video hearing facilities at [a] Immigration Detention Centre resulting in an incursion into the statutory 14-day notice period that the Tribunal is required to provide to the applicant. The Tribunal explained this in the hearing invitation and requested that the applicant sign the accompanying consent to a shortened timeframe form if he wished to proceed with the hearing.
On 9 November 2022, the Tribunal received a signed and dated consent to a shortened timeframe for notification of a hearing form indicating that the applicant was happy to go ahead with the hearing at the scheduled time and date.
The applicant appeared before the Tribunal on 14 November 2022 via MS Teams from [a] Immigration Detention Centre to give evidence and present arguments. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical and quick.
CRITERIA FOR A PROTECTION VISA
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.
APPLICANT’S CLAIMS AND EVIDENCE
Identity and country of reference
The applicant claims that he was born on [DOB deleted] in [City 1] in the [Province 1] of Papua New Guinea (PNG).[1] and claims to be a citizen of PNG.
[1] Application for a protection visa dated 10 January 2019 [information deleted].
The applicant provided the Department with a copy of his Papua New Guinea passport biodata page, which confirmed the date and place of birth of the applicant. There was no evidence to suggest that the documents provided is a bogus document as defined in s5(1) of the Act. The document provided by the applicant is consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a citizen of Malaysia, and as such his protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant’s migration history is as follows:[2]
[2] Protection Visa Decision Record dated 12 July 2019. AAT File No 1921944, Doc ID: 6089978
| Date | Event details |
| 01/04/2015 | Lodged tourist visa (subclass FA - 600) offshore |
| 16/04/2015 | Tourist visa (subclass FA - 600) granted |
| [date deleted] 2015 | Arrived in Cairns, Australia and immigration cleared |
| [date deleted] 2015 | Departed Sydney |
| 15/07/2015 | Lodged student visa (subclass TU - 572) |
| 21/08/2015 | Student visa (subclass TU - 572) Granted |
| [date deleted] 2015 | Arrived in Sydney, Australia and immigration cleared |
| 27/05/2016 | Non-compliance notice issued for student visa (subclass TU - 572) |
| 20/02/2017 | Student visa (subclass TU - 572) cancelled – did not commence course |
| 19/05/2017 | Bridging visa E (subclass WE – 050) granted |
| 10/01/2019 | Protection Visa (subclass XA-866) application lodged |
| 14/01/2019 | Bridging visa E (subclass WE-050) granted |
| 12/07/2019 | Protection Visa (subclass XA-866) application refused. |
| 08/08/2019 | Application for review of refusal of protection visa (subclass XA-866) lodged with the Tribunal |
| 21/11/2019 | Bridging visa E (subclass WE-050) granted |
| 5/04/2022 | Bridging visa E (subclass WE-050) cancelled under s501 |
| Present | Resident in [A] Immigration Detention Centre. |
Applicant’s claims for protection
The applicant’s claim for protection is detailed in his application for a protection visa dated 10 January 2019. The applicant’s claims are as follows:[3]
[3] Application for a protection visa dated 10 January 2019 [information deleted]
Why did you leave that country or those countries?
“I left Papua New Guinea because I have enemies who are and will try to kill me. There was a tribal that that happened in my village over a large piece of land, the piece of land was sitting on some mineral deposit, and they wanted to get everything. Me being the landowner they wanted me to sign and give them the piece of land. We made peace agreement but the people from the other tribe were not happy with the outcome of the decision on the peace agreement. I was vocal about the peace agreement and the idea that we split the land. This did not settle well with my enemies, and they thought I had other plans, so they wanted to kill me”
Did you experience harm?
“Yes. I did experience harm from the arms of my enemy. I was stabbed twice on [the] side of the body one on the [arm] and the other on my [abdomen], my face was also smashed with a very large stone leaving me with a broken tooth and a displaced jaw. The last blow was that I was stabbed on the neck was left for dead on a side road. They harmed me because of the fighting over the piece of land and that I was the one person from my tribe that was educated, and they were jealous”
Did you seek help within the country or those countries after the harm?
“Yes. I did seek help within my country I went to the appropriate authorities like the police telling them about my situation and what had happened to me. But the only response that I get from them that it was a matter that happened in the village and that I should go back and village and try to solve the situation. but I was almost killed and the thinking of going back to the village and sorting things out wasn't part of the plan”
Did you move, or try to move, to another part of that country or those countries to seek safety?
“Yes, I moved away from the village and tried to settle in the capital Port Moresby, but I was still targeted. Even though I tried to be so secretive PNG is a small nation and my enemies knew where I was and the threats and attack were still coming but I managed to avoid and escape in time. That is why I came to Australia to be away from the threats and not too look over my shoulder”
What do you think will happen to you if you return to that country or those countries?
“My enemies know that I am studying and living in Australia they are still waiting and hoping that I go back to Papua New Guinea, and they could kill me. They have the resources to find out if I go back and they will still hunt me down and kill me, even if I go to remotest part of the country. This is how afraid I am to go back they will do whatever it is to take me down”.
Do you think you will be harmed or mistreated if you return to that country or countries?
“Yes, If I go back to Papua New Guinea the type of harm that I will get is I will be killed and I know that for sure. The hatred that is built towards me has been over the years and my enemies are ready to do whatever it takes to kill me. They will try to harm me and try to kill me over the piece of land because the land has more value and they know that and that was why we had the tribal fight”
Do you think the authorities of that country, or those countries can and will protect you if they go back?
“No, I have tried going to the appropriate authorities like the police, but the response is and was always the same that I should go and fix these things in the village because it is a village matter. If they were to protect me, I know I will be killed before the authorities will show up. I know I won’t be safe with the kind of enemies that I have. They are trying to kill me over something that has more value than just the land and they will do whatever it takes to kill me and get the land and the authorities will not try to do something”
Do you think you would be able to relocate within that country or those countries to an area where you would not be harmed?
“No, I have tried relocating to another part of the country like the capital thinking that it is the capital and there were a lot of law enforcement authorities, but my enemies still found out where I was, and they staged and attack on me almost killing me, but I was lucky enough to escape before they attacked me. As I've said earlier Papua New Guinea is a small country and trying to hide is very complicated as I have tried moving to other provinces as well, but I was always found, and the threat is always constant”
The delegate summarised the applicant’s claim as follows:[4]
[4] Protection Visa Decision Record dated 12 July 2019 at p.2. AAT File No 1921944, [number deleted]
· The applicant left PNG because he has enemies, and they will try to kill him if he returns to PNG.
· The applicant own land that is situated on mineral deposits. A tribal dispute occurred in the applicant’s village over land.
· The applicant owned and made a peace deal with the people to access the mineral deposits located on his land.
· The applicant’s tribe did not support the peace agreement.
· The applicant was harmed by his enemies.
· The applicant was stabbed twice on his [arm] and abdomen, his face was smashed resulting in a broken tooth and displaced jaw. This appended because he owned the land and supported the peace agreement, and his tribe were jealous of him and his education.
· The applicant attempted to go to the police by they told him to go back to the village.
· The applicant tired to relocate to Port Moresby but as harmed there also.
· The applicant’s enemies know that he is studying in Australia, and they are waiting for him to return so they can harm him.
Applicant’s evidence
The applicant evidence was that he was born in [City 1], PNG on [DOB deleted]. The applicant claims that he is a member of [a]Tribe and that his religion is Baptist. His evidence was that until he attended high school in [City 1], he lived with his family in [Village 1], approximately three hours for [City 1].
The applicant’s evidence to the Tribunal was that his mother and father continue to live in PNG. The applicant’s father owned and operated a small store in [Village 1] and grows crops for the family consumption. His evidence was that his father remained in the village while his mother was living in [City 1]. However, due to the tribal conflict in his village his parents have now fled. He was not able to say precisely where they are currently living, but thinks they are in [locations deleted].
The applicant had two biological older brothers and two biological older sisters and an adopted younger sister. One of the applicant’s brothers was killed due to the tribal dispute. His evidence was that his other brother now lives in Port Moresby. His two natural sisters are married and continue to live in PNG. The applicant adopted sister continue to live with his parents.
The applicant’s evidence was that attended primary school in [Village 1] and then High School in [City 1]. However, he claimed in his application that he attended [City 1] Primary school from 1999 to 2007 and then [City 1] Secondary school from 2008 to 2011. The applicant did not attend University or college in PNG. The applicant travelled to Australia to study. He studied [Course 1] at the [College 1] but withdrew after 12 months. He then studied for a [Course 2] at [College 2].
The applicant claims that he came to Australia to escape the fighting at home. He claims that he was not aware that he was able to apply for a protection visa. A friend told him that he could study in Australia. As a result, he obtained a student visa for the purposes of escaping PNG and studying in Australia. The applicant did not complete the Diploma [in course 2] because his student visa was cancelled due to having been charged with domestic violence charges.
The applicant’s evidence was that he is a member of [a] Tribe. He claims that he has applied for a protection visa because he fears being seriously harmed because of tribal killings if he is returned to PNG. The applicant’s evidence was that his grandfather was a Tribal leader and because of his position within the tribe, he was given approximately 7 acres of land from the communal tribal lands. His grandfather then divided the land and gave it to members of his family, including the applicant, his father, his brother, and his uncle. The applicant’s evidence was that he was the owner of his land. He was not able to provide document evidencing his grandfather’s or his ownership of the land. Rather, he claimed that he was the owner under customary law.
The applicant claims that minerals were found on his land including gold deposits. As a result, a person known as [Mr A] surveyed the applicant’s land. He claims that [Mr A] wants the land to mine for its gold deposits. The applicant’s evidence was that [Mr A] has approached him about taking over the land. [Mr A] first approached the applicant when he was working odd jobs in [City 1]. The applicant refused give up the land. His evidence was that even if a person is not living in the village, it is culturally important for them to hold a piece of land to show that they are part of the community and to give them a sense of belonging to the community.
The applicant claimed that after having visited the village he was then attacked by four men upon his return to [City 1]. He claims that after getting off the bus just out of the [City 1] township, at around 4.00pm, he was attacked by four men (‘the attack’). There was no other person on the road at the time of the attack. He claims that he was stabbed in the neck, his throat was cut, and he suffered a broken tooth. The applicant provided photos of the injuries he claims to have received because of the attack. The applicant’s evidence was that during the attack he was desperate to survive, and he started punching at his attacker wildly. He claims that all he could do was to fight them off. The attackers fled as others approached on the road. The applicant was left on the side of the road and taken to hospital by people who had been passing by the scene. The applicant remained in hospital for one day after which he stayed with his mother in [City 1].
The claimed that he went to the police, but they did nothing claiming it was a tribal matter. The applicant’s brother, [Mr B], provided a statement[5] to the Tribunal which he confirmed that the applicant has reported the matter to the police. He confirmed that the police told them it was a tribal matter and said that needed to solve the problem with their own community leaders. [Mr B] stated that they had attempted to resolve the matter directly with [Mr A] on the basis that they receive 50% of the mineral deposits but claims that he wanted everything.
[5] Statement by [Mr B] received 30 November 2022; AAT File No 1921944, Doc ID: 10497834
The applicant’s evidence was that after about a month after the attack, he returned to the village. The applicant’s brother confronted Mr [A] about the attack, but he denied any involvement. After a period, the story came out in the village that Mr [A] had arranged the attack on the applicant. As a result, the applicant moved to [City 2] to live with his sister.
The applicant claims that Mr [A] has approached his family about the land. The applicant’s brother had remained in the village and built a house on his land and incorporated the applicant’s block as part of his home. The applicant’s evidence was that [in early] 2022 his brother was killed over the land. He claims that Mr [A] was responsible. The applicant’s evidence was that all his family have fled the village because of the land dispute and live either in Port Moresby or [City 2].
The applicant claims that due to tradition and customs, Mr [A] cannot take the land while the applicant is alive. If he does take the land forcibly, then the tribe and the whole community turn against him. If the applicant dies, then he will be able to claim the land. The applicant claims that Mr [A] wants the land for the gold he believes is on the land. The applicant’s evidence was that there is no police presence in the village. In any event when he reported to attack to the police, they claimed it was a tribal matter and did not want to get involved.
The applicant claims that if he is returned to PNG he will be seriously harmed by Mr [A] and members of his tribe for control of his land in the village.
Applicant’s documents
The applicant has provided the following documents in support of his application:
(a)Protection Visa application dated 10 January 2019.[6]
(b)Referral by Protection Sensitive Case Registrar Referral of the applicant.[7]
(c)Photographs of applicant’s injuries.[8]
(d)Photographs of applicant’s injuries.[9]
(e)Applicant’s Passport.[10]
(f)Australian Border Force – Immigration Status Service dated 31 December 2018.[11]
(g)Applicant’s statement.[12]
(h)Applicant’s hearing response with photograph.[13]
(i)Statement by [Mr B] received 30 November 2022.[14]
[6] Application for a protection visa dated 10 January 2019; [numbers deleted].
[7] Referral by Protection Sensitive Case Registrar Referral of the applicant; Dept File No [file number deleted]
[8] Dept File No [file number deleted]
[9] Dept File No [file number deleted]
[10] Dept File No [file number deleted]
[11] Dept File No [file number deleted]
[12] AAT File No 1921944, Doc ID: 6089983
[13] AAT File No 1921944, Doc ID: 10424475
[14] AAT File No 1921944, Doc ID: 10497834
CONSIDERATION OF Claims and evidence
The issue in this case is if the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
COUNTRY INFORMATION
In accordance with Ministerial Direction No.84 made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT report on Papua New Guinea (PNG) dated 10 February 2017 (DFAT Report). In particular, the Tribunal has taken into consideration those parts of the DFAT Report relevant to the applicant’s claims, as reproduced in Attachment A to this decision.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, the fact that an applicant claims to 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. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[15]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[16]
[15] Section 5AAA of the Act.
[16] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[17] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[18] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[17] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p482.
[18] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
In this case, the applicant’s personal and cultural background needs to be considered in relation to his ability to engage in the legal process and to provide evidence to the Tribunal. The applicant has limited work experience and has received only partial tertiary education. His cultural background from the Highlands of PNG is one of tribal violence triggered for a variety of reasons including territory issues, election outcomes, accusations of sorcery and witchcraft.[19] As such, the applicant’s evidence needs to be considered in light of his cultural background and norms.
Accepted facts
[19] DFAT Report at p.12
Based on the applicant’s oral evidence to the Tribunal, together with the statement of [name deleted], the Tribunal accepts and finds that:
(a)The applicant was that he was born in [City 1], PNG on [DOB deleted].
(b)The applicant is a member of [a] Tribe.
(c)The applicant is a Baptist.
(d)The applicant’s evidence to the Tribunal was that his mother and father continue to live in PNG.
(e)The applicant’s father owned and operated a small store in [Village 1] and grew crops for the family consumption.
(f)The father remained in the village while his mother lived in [City 1] but have fled the tribal conflict in his village.
(g)The applicant had two older brothers, one of which was killed. His remaining brother continues to live in PNG.
(h)The applicant has two natural sisters and an adopted sister, all of whom live in PNG.
(i)The applicant attended [City 1] Primary school from 1999 to 2007 and then [City 1] Secondary school from 2008 to 2011.
(j)The applicant studied [Course 1] at the [College 1] in Australia but withdrew after 12 months. He then studied for a Diploma [in Course 2] at [College 2] but has not completed the course.
Delay
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[20] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness or depth of an applicant’s fear of persecution.[21]
[20] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[21] Subramanium v MIMA (1998) VG310 of 1997.
In this case, the applicant initially arrived in Australia on a tourist visa [in] May 2015. The applicant departed Australia [in] June 2015 and returned to Australia on a student visa [in] October 2015.
[In] December 2016, the applicant was charged with two counts of common assault. [In] May 2017 the applicant appeared at the Newtown Local Court and was sentenced to 15 months Good Behaviour bond without conviction.
The applicant’s student visa was cancelled on 20 February 2017 under s116 of the Act. As a result, the applicant became an unlawful non-citizen.
On 27 February 2017, the applicant made an application to the Administrative Appeals Tribunal (AAT) for a review of the decision to cancel his student visa. On 11 November 2018 the applicant’s bridging visa expired and he became an unlawful non-citizen.
On 31 December 2018 the applicant was located and identified by the NSW Police as an unlawful noncitizen. As a result, he was detained pursuit to s.189 of the Act and interviewed by Immigration Status Service (ISS). The applicant was then placed in [a] Detention Centre where he remained for a period of four years.
The applicant lodged his protection visa on 10 January 2019.
For the purposes of this decision pursuant to s.36(2) of the Act, it is not necessary for the Tribunal to consider the applicant’s criminal history. Nevertheless, the Tribunal notes given the sentence he received from the court; it appears that the applicant was not considered a threat to the broader community.
The applicant’s evidence before the Tribunal was that his decision to leave PNG and study in Australia was to for the purposes of escaping [Mr A] and the tribal dispute involving his land. The applicant stated that he was not aware he could have made a protection visa until he was informed by a person he met in detention. However, the applicant noted that even if he was aware, whilst having a student visa he was unlikely to make application as soon as possible after his arrival in Australia. While the Tribunal would have expected the applicant to have been aware that he could make application for a protection visa, it accepts that the applicant’s delay in making his application was because he relied on his student visa for the purposes of remaining in Australia.
Applicant’s refugee claim
Relevant grounds
The applicant did not identify the basis upon which he has a well-founded fear pursuant to s 5J(1) of the Act. Nevertheless, it was open to the applicant to claim that he has a well-founded fear of persecution within the scope of s 5J(1) of the Act as a member of a particular social group (PSG), that is, as a person who will be seriously harmed upon his returns to PNG due to being a victim of a tribal dispute.
Section 5L of the Act[22] states:
[22] In Applicant A (1997) 190 CLR 225 re: Dawson J.
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.
The applicant claims that he will be seriously harmed if he is returned to PNG because of a claim having been made over his land in the village. The applicant claims that the matter has become the source of tribal dispute. The applicant claims that the ownership of his land and his membership of his tribe is a characteristic that is so fundamental to his identity that he cannot renounce it. Based on the available country information and for the reasons expressed below, the Tribunal accepts that the applicant’s ownership of the land and his membership of his tribe are characteristics that distinguishes the applicant and the group from society. As such, the Tribunal accepts that the applicant is a member of a PSG pursuant to s 5L of the Act.
Applicant’s well-founded fear
In Chan v MIEA[23] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[24]
[23] (1989) 169 CLR 379 at 396.
[24] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.
However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[25]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[25] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.
In MIEA v Guo, the Court stated that:[26]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[26] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
The applicant claims that, in the event he is returned to PNG, there is a real chance he will suffer serious harm because of his ownership of the land in his village. For the reasons expressed below, the Tribunal accepts that the applicant holds a subjective and an objective fear of persecution for a reason mentioned in s 5J(1)(a) of the Act as claimed.
Applicant as a victim of tribal dispute.
The applicant states that there is a real chance he will be seriously harmed if he is returned to PNG because of a tribal dispute over land he owns because of it having been left to him by his grandfather. The applicant claims that Mr [A]is interested in taking over the land for the purposes of exploiting minerals that are believed to be on the land. The applicant claims that according to customs, Mr [A] is not able take the land while the applicant is alive. As such, the applicant claims that his life will be in danger if he returns to PNG. He claims that Mr [A] arranged the attack on him in [City 1]and will peruse him if he is returned to PNG.
The country information[27] reports tensions between and within PNG’s hundreds of different tribal groups occur frequently. The Tribal fights in the highland s of PNG are brutal with the aim simply to destroy the enemy, mentally and physically. [28] They generally occur in or around remote villages without access to medical assistance or law enforcement. By taking over the enemy’s land, the occupying party is better positioned during future peace and compensation negotiations.
[27] DFAT Report at p.12
[28] Australian Institute of International Affairs, ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’ Andrew Kobylinski 14 March 2022; http:/>
In the Highlands, clans take up arms against each other to defend their pride and interests.[29] The clan’s decision to escalate in response to a grievance is one made from kinship and solidarity. The cause of a fight can be caused by a range of issues including electoral outcomes, allegations of witchcraft, the souring of relationships, or a misunderstanding after an altercation.[30] The outbreaks of violence, rioting and looting often results in the large destruction of property, disruption of services, serious injury and death.[31] In recent years violence clashes between tribal groups have occurred during the 2022 national election period.[32]
[29] Australian Institute of International Affairs, ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’ Andrew Kobylinski 14 March 2022; http:/ ibid; DFAT Report at p.12
[31] DFAT report at p.12
[32] ibid
Nevertheless, it is reported[33] that tribal fighting has its genesis in the ownership of land, 97% of which in PNG is customarily held (i.e., owned by its traditional familial owners). It’s reported that land[34] is the crucial resource for subsistence and survival in rural PNG (most of the country), and with limited police presence or authority outside cities, disputes over territory quickly degenerate to confrontation, and then violence. Once the decision to fight is made, traditionally the man with the grievance is considered ‘the owner of the fight’ and the entire clan is expected to support him.[35] If the grievance is held by a woman, often an elder male relative would be “the owner of the fight” on her behalf. He is responsible for calling the start and end of the fight. However, its reported that recently fights have been started by youths against the advice of older clansmen and the owner of the fight, whose preference is for mediation.[36] Fights in the Highlands are unpredictable. It’s reported[37] that battles are generally short and intense but reaching a ceasefire or peace agreement can take months or years, with many fights remain “frozen” with no active fighting for long stretches. Without a peace agreement in place the fight may resume at any moment.[38]
[33] The Guardian, ‘Tribal Conflict worsens in Papua New Guinea as firearms rewrite the rules.’ Rebecca Kuku 27 Feb 2021; http;/ ibid
[35] Australian Institute of International Affairs, ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’ Andrew Kobylinski 14 March 2022; http:/ ibid
[37] ibid
[38] ibid
Many civilians who do not participate in the fights are often wounded or killed during the intense battles. [39] The Highlands’ limited access to healthcare only adds to the anguish. It’s reported that during the tribal fighting often sexual violence occurs[40] The impact of violence remains even after the fighting has stopped as fleeing villagers are often displaced for months or even years.
[39] ibid
[40] ibid
It’s reported[41] that the Tribal fighting in PNG has become worse in the last 20 years. One reason is the fact that a high percentage of the youth population in PNG and in particular the highlands. In PNG 50 percent of the population is under 24 years with a higher percentage of youth population in the Highlands. Limited employment and lack of opportunities has increased youth violence. In addition, with the increasing influence of modern western society in PNG, the traditional cultural and tribal structures have changed with traditional elders losing their stabilising influence.[42]
[41] ibid
[42] ibid
Finally, the introduction of modern weapons and methods of warfare have led to more brutal outcomes.[43] It’s reported[44] that in the past, a decision to go to war with an opposing clan or tribe would have been taken collectively. Today disillusioned young men with access to modern weapons can singlehandedly unleash devastation on their enemies and their own communities. The presence of these modern weapons has meant the number of casualties has been much higher, making it harder for opposing sides to reconcile (and the traditional exchange of compensation prohibitive). This has led to unprecedented tribal fighting dynamics.[45] Instead of pre-arranged battles between warriors in designated areas as in the past, villages are now attacked under cover of darkness as part of a scorched earth policy to kill and destroy with abandon. In addition, fighting was once restricted to the geography of the tribes involved. Today targeted killings occur against random members of either side anywhere.[46] Schools and clinics have been attacked and destroyed, and most recently in Hela pregnant women and children were killed and others burned alive.[47]
[43] ibid
[44] Australian Institute of International Affairs, ‘In the fight: the Challenge of tribal Conflict Papua New Guinea’ by Ahmad Hallak 29 October 20119. http:/ ibid
[46] ibid
[47] ibid
The International Committee of the Red Cross (ICRC) has been present in PNG since 2007 and opened its offices in Mount Hagen and Bougainville in 2012. In 2012 approximately 30,000 people were displaced by communal violence in areas in which the ICRC operates, including Enga, Hela and Southern Highland provinces.[48] It’s reported that on 20 July 2022 20 people were killed in tribal violence in Porgera district, Enga Province where an estimated 18 people were killed. The attack involved allegations of sexual violence against women and children and an estimated several thousand being displaced.[49]
[48] DFAT Report at p.12
[49] ibid
It’s reported[50] that inter-tribal conflicts often transmigrate populations in other parts of the country, typically to Port Moresby and Lae. Conflicts often continue in different locations and targeted individuals will often be followed and targeted in the location to which they migrated. As a result, DFAT[51] has assessed that those involved in intertribal conflicts face a moderate risk of violence and societal harassment that will not be ameliorated by relocating to another area.
[50] ibid
[51] ibid
In this case, the applicant has been consistent about his claim of being seriously harmed if he is to be returned to PNG. The applicant’s evidence was at times vague and not consistent with the information he provided in his protection visa application. For example, the applicant’s evidence to the Tribunal was that he had attended primary school in the village while he claimed in his application that he had attended [City 1] Primary school from 1999 to 2007. The discrepancy between the applicant’s evidence and the information in his application is relatively minor and not directly relevant to the applicant’s claims. The applicant was in detention at the time of the hearing and clearly nervous about the proceeding generally. Accordingly, the Tribunal has accepted and found that he attended the [City 1] Primary school from 1999 to 2007 as claimed in his application.
In addition, the applicant was not able to tell the Tribunal specifically where members of his family were living, including where his mother and father are now living. In normal circumstances the Tribunal would have expected the applicant to know where his mother and father were living. However, in this case, the Tribunal notes that the applicant has been detention for a period two years. In addition, the applicant’s evidence is consistent with the available country information that a significant number of people have recently been displaced from the [Provence 1] due to tribal violence. The applicant’s evidence was that due to the tribal violence, his mother and father had fled the Provence and was not able to say where they are located. The applicant also claimed one of his brothers had been killed in the village because of the violence. Even though the applicant did not provide any documentary evidence in support of his claim that his brother had been killed, it was confirmed in [Mr B] statement. Based on the evidence before the Tribunal, the Tribunal accepts that his brother was killed because of the tribal violence as claimed.
Finally, the applicant did not provide any evidence of the ownership of his land as claimed. In the absence of such documentary evidence, the Tribunal has some reservations as to whether the applicant owns land in the village as claimed. However, the Tribunal notes that the country information states that 97 percent of PNG’s land is customary owned and that as such it is difficult to obtain formal documentary evidence of ownership to land. Therefore, in the absence of any evidence to the contrary, based on the applicant’s own evidence and the statement of statement of [Mr B], the Tribunal accepts that he holds land in the village as claimed.
The applicant claims that he will be harmed if he is returned because he is the owner of the land and the fact that others wish to control it. From the applicant’s evidence, it was difficult to determine the precise circumstances of [Mr A] desire for the land as claimed by the applicant. There was no evidence of an independent report that any minerals were located on the land as claimed. Nevertheless, the applicant’s claim was supported by the statement of statement of [Mr B]. As such, in the absence of any evidence to the contrary, the Tribunal accepts the applicant’s evidence that he was attacked and threatened by Mr [A] as claimed.
While the applicant’s evidence may be difficult to accept for a person form Australia, based on the available country information, the Tribunal accepts the applicant’s evidence that as the owner of the land in the village, there is a real chance that he will be seriously harmed because of tribal violence orchestrated or initiated by Mr [A]. Given the interest in the applicant’s land by Mr [A], the Tribunal accepts that the applicant’s well-founded fear of persecution involves systematic and discriminatory conduct against the applicant.
Therefore, based on the country information and the applicant’s evidence, the Tribunal accepts that the applicant is owner of the land in the village and as such there is a real chance he will be seriously harmed by tribal violence if he is returned to PNG.
Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J(1)(a) and s 5J(1)(b) of the Act and finds that the applicant is a refugee pursuant to s 5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jason Pennell
Senior MemberAttachment - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
…
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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