1921944 (Refugee)

This matter concerned an application for a protection visa by an applicant who claimed to fear harm if returned to Papua New Guinea (PNG). The applicant’s claims were based on his status as a landowner in PNG, alleging that others wished to control his land, which he believed contained mineral deposits. The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically landowners facing disputes over customary land ownership in PNG, and whether Australia had protection obligations towards him.

The Tribunal considered extensive country information detailing the prevalence and brutality of tribal fighting in PNG, often stemming from land ownership disputes. It noted that land is a crucial resource for subsistence and that such disputes frequently degenerate into violence due to limited law enforcement outside urban areas. The Tribunal also examined the applicant's evidence regarding his past experiences, including an attack and threats by an individual named Mr. [A] concerning his land, and the death of his brother due to tribal violence. The Tribunal had to assess the credibility of the applicant's evidence, particularly in light of minor inconsistencies and his detention, while also considering the difficulties in obtaining formal documentation for customary land ownership in PNG.

The Tribunal reasoned that the applicant's fear of harm was well-founded, given the country information on tribal violence and land disputes, and the applicant's specific claims supported by a statement from Mr. [B]. It accepted that the applicant was the owner of land in his village and that Mr. [A]'s interest in this land, coupled with the general context of tribal violence, created a real chance of serious harm. The Tribunal concluded that the persecution feared by the applicant involved systematic and discriminatory conduct, making him a refugee under section 5H of the Migration Act 1958. Consequently, the Tribunal found that Australia had protection obligations towards the applicant under sections 5J(1)(a) and 5J(1)(b) of the Act, and that he satisfied the criterion set out in section 36(2)(a). The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.