1933681 (Refugee)

1933681 (Refugee) [2024] AATA 1317 (22 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Noel Reeves
CASE NUMBER:  1933681
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Khanh Hoang
DATE:22 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 22 January 2024 at 4:59pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – membership of a particular social group – member of a Tribe – ongoing tribal violence – family members injured and or killed in tribal conflict – greater risk of harm than other members of his tribe due to landownership – applicant’s evidence found to be credible and consistent – no effective protection measures available – well-founded fear of persecution – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Cases
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994)
SZLVZ v MIAC [2008] FCA 1816
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 15 November 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, lodged a valid application for a protection visa on 7 December 2017.
The applicant appeared before the Tribunal on 12 December and 20 December 2023 to give evidence and present arguments. The Tribunal conducted the hearings with the assistance of an interpreter in the Tok Pisin and English languages.
The applicant was represented in relation to the review by Mr Noel Reeves from the Refugee and Immigration Legal Service (RAILS). The representative attended the Tribunal hearing. An observer from RAILS was also present at both hearings, with the consent of the applicant.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he meets the alternative criterion for complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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.
The applicant’s identity and country of reference
The applicant claims to be a citizen of Papua New Guinea. Based on a copy of his passport on the Department’s file, and in the absence of any other evidence to the contrary, the Tribunal finds that Papua New Guinea is his country of nationality and receiving country for the purposes of refugee and complementary protection criteria assessments.
CONSIDERATION OF CLAIMS AND EVIDENCE
Department’s decision
As described in the delegate’s decision, the applicant made the following claims for protection:
·The applicant claimed that there was a land dispute between his tribe, the [Tribe 1], and another tribe, the [Tribe 2].
·This resulted in the loss of his father’s [plantation] of about [a number of] acres.
·His tribe’s houses were burnt, crops destroyed, and their land seized.
·Some of the men in his tribe were killed and wounded and the rest of his tribe dispersed throughout PNG.
·While the women are safe, the enemy tribe are using sorcery against the children so that they do not attempt to reclaim the land in the future.
·The applicant will be targeted if he returns to PNG as it was his father’s [plantation] that was taken by the enemy tribe.
·He cannot relocate as the enemy tribe has a person working in [an organisation] who would alert the tribe of his return.
The applicant was interviewed by the Department on 18 July 2019.
The delegate accepted that the applicant’s tribe were involved in a land dispute. However, the delegate did not accept that the applicant was targeted while in PNG, or that he would be targeted if returned to PNG. The delegate found that the applicant had no subjective fear of persecution owing to his delay in making a protection visa application. As the delegate did not accept the applicant’s claims, the delegate did not make any assessments under s 36(2)(a) or s 36(2)(aa) of the Act. The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations.
Evidence before the Tribunal
The Tribunal has before it, information on the Department’s file and the following documentary evidence submitted to it as part of the review process:
·Legal submissions by RAILS dated 5 December 2023 and 15 January 2024.
·Statutory declaration by the applicant, dated 5 December 2023, outlining his fears of returning to Papua New Guinea.
·Support letter by the review applicant’s sister, [Ms A], dated 5 December 2023.
·A copy of the applicant’s birth certificate (previously provided to the Department).
·Photos taken at the funeral of [Mr A], the applicant’s brother.
·Copy of [Mr A]’s medical certificate of death, dated 24 August 2022.
·Photo of the body of [Mr B] (previously provided to the Department).
·Photo of the applicant’s uncle after his house was burned down (previously provided to the Department)
·Photo of applicant’s aunt (his father’s sister), [Ms B] in hospital after she experienced burn injuries. A [church] member is seen sitting next to her (previously provided to the Department)
·Photo of [Mr C], the applicant’s uncle after he had been attacked with bush knives and sticks during the tribal violence in October 2016. An injury can be seen from a knife on his right shoulder (previously provided to the Department)
·Photo of people standing over the remains of a burned down house taken after the tribal violence in October 2016 (previously provided to the Department)
·Photo of [Church member] who had come to look at the remains of a burned house, photo taken after the tribal violence in October 2016 (previously provided to the Department)
·Photo of women from the [Village 1] which shows the applicant’s aunt with patterned scarf wrapped around her hair (previously provided to the Department)
·Photos depicting injuries sustained to the applicant’s [body part], along with a submission, dated 15 January 2024, outlining the likelihood that the injury was sustained from an arrow/spear tip.
Tribunal hearing
Applicant’s background
The applicant is now [age] years old. He was born in [Province 1] and has resided his whole life in [Village 1] in the [Province 1]. The applicant attended school on-and-off, but he did not complete year 10. The applicant worked helping his father with his [plantation].
The applicant has three brothers ([Mr D], [Mr E] and [Mr A]) and four sisters ([Ms A], [Ms C], [Ms D] and [Ms E]). He also has five half-siblings including three half-sisters ([Ms F] and [Ms G], [Ms H]), two of whom are deceased, and a half-brother, [Mr F], also deceased. His half-brother is named [Mr G]. Of his biological brothers, [Mr D] lives in Australia, [Mr E] resides in the [Country 1], and his brother [Mr A] is deceased. His sisters live in other villages with their husbands. His sister, [Ms A], lives in Port Moresby because her husband works there.
The applicant married his wife in approximately [year] and they had a biological son, [Mr H] who was born in [year]. In 2009, the applicant and his wife adopted another son [Mr I], who was his stepbrother’s eldest son. The applicant stated that in PNG, they can adopt their siblings’ children and do not require documentation to do this. In his statutory declaration, the applicant stated that he was told that his wife had now married someone else.
The applicant keeps in contact with his sister [Ms A] with whom he contacts every Saturday.
Applicant’s claims
The applicant claimed that his father passed away in July 2016 due to an illness and he inherited a large [plantation]. There are about [a number of people] who work on the plantation. The applicant stated that it is a large planation, although he is unsure of the exact dimensions. Ownership of the land has passed from his grandfather to his father, and now to him as the custom is that the first child of the father inherits the land. As such, his half-brother [Mr G] is not entitled to the land.
22.In August 2016, members of the neighbouring [Tribe 1] approached the applicant’s family and asked if the land could be sub-divided. The applicant explained that his tribe and the [Tribe 1] are related; their respective tribes descend from their grandfathers who are brothers. The applicant met with his family members, including his uncles and aunts and cousins and they decided not to share the land with the [Tribe 1]. He explained that his family decided not to share land because the [Tribe 1] members did not contribute to or support the coffee plantation while it was running. The applicant stated that the family informed the [Tribe 1] of its decision through community leaders.
The applicant stated that [Tribe 1] members were upset with this decision and some weeks later they came onto the plantation to chop down [trees]. The applicant’s family sought mediation through the community court, which the applicant explained as being where a committee of community leaders hear a case and make orders. The community leaders found that the [Tribe 1] had destroyed the applicant’s crops and ordered them to pay compensation. The applicant claimed that no compensation was paid by the [Tribe 1], and this upset his family.
The applicant stated that because the [Tribe 1] did not respect the decisions of the community court, he sought assistance from the police. The applicant approached the police and paid 1,000k kina for the police to assist him and to negotiate with the [Tribe 1] about the payment of compensation. He wanted the police to tell the [Tribe 1] not to enter his property. However, the police were not able to attend the village due to the road conditions.
In October 2016, the [Tribe 1] sent a church elder who told the applicant to reconsider his decision. The following day, in the early morning, the applicant’s uncle witnessed members of the [Tribe 1] chopping down trees and fighting broke out. The applicant stated that the fighting lasted half a day, and involved sticks, spears, bows and arrows. The applicant claimed that both sides sustained significant injuries, and [a number of] people from his tribe died as a result, including his uncle and his son. The applicant stated that he did not see his son die, although he was informed by others that his son was chopped with a knife. The applicant claimed that the [Tribe 1] burned down houses and his family members were forced to flee the land.
The applicant claimed that he sustained an injury on his [body part] as a result of being speared. His representative photographic evidence of his injuries along with a submission that outlines the likelihood that the injury is consistent with a spear wound. The applicant fled to [District 1] with the assistance from the family of a nearby church elder. His mother, wife and adopted son managed to escape to his mother’s village where they stayed one night, before travelling on to his wife’s home [Village 2]. The applicant’s wife and adopted son visited him in [District 2] where he stayed for two and a half weeks before he travelled to Port Moresby.
The applicant claimed that his brother [Mr D] heard the news and felt sorry for him and purchased him a ticket to travel to Port Moresby. The applicant stayed at a motel in Port Moresby for about two and half months. His sister [Ms A] would come to give him food, medication and to tell him what was happening in the village. The applicant claimed that while hiding in Port Moresby, he sent money to [Mr D] who helped to arrange his ticket and visa to Australia.
In February 2017, the applicant arrived in Australia and lived with his brother [Mr D]. The applicant first lodged an application for protection in June 2017 (which was invalid), and he lodged another valid application in December 2017. In addressing the question of delay in making the protection visa application, the applicant stated that when he arrived, he asked [Mr D] for assistance, but his brother had considered that he had already helped him enough. The applicant stated that [Mr D]’s wife influenced his decision not to help the applicant. The applicant did not know where to go, he had no legal assistance or means such as a laptop to research what he should do to apply for protection.
In 2018, the applicant was informed by his wife that his adopted son, Title had died. His wife had told him that his adopted son was given a scone to eat by members of the [Tribe 1] and that he died afterwards. The applicant claims that his adopted son was poisoned by members of the [Tribe 1].
In August 2022, the applicant’s brother [Mr A] returned to the village. The applicant stated that they thought that the tribal issue had diffused. His brother bought along a group of youths to explore clearing the plantation so that it could be used again. The applicant’s brother then went to [District 1] and count ballot boxes as part of the election that was going on at that time. The applicant claimed that the [Tribe 1] bribed his brother’s friend who took him out and spiked his drink and that this was a form of sorcery. His brother died a few weeks afterwards. The applicant stated that his sister told him that the [Tribe 1] still want their share of the land, and still hold a grudge against him.
The applicant claimed that if he were to return to PNG, members of the [Tribe 1] will seek him out and kill him or poison him. He stated that his two sons are gone and there is no one who will support him. The applicant stated that he cannot settle safely anywhere in PNG due to the population of the Kamata tribe and the fact that everyone has a phone. Once he is located, he will be in trouble.
The applicant’s sister, [Mr A], provided a letter of support in which she corroborates the applicant’s claim that he was hiding in Port Moresby, and that she only visited at night-time to give him food and medicine. The letter states that she receives messages in Port Moresby from his village that, if the applicant comes back home, he will be killed, or if he wants to buy land in other parts of Papua New Guinea the [Tribe 1] will hunt him down and kill him.
Country information
DFAT’s Country Information Report for Papua New Guinea provides the following information in respect of inter-group conflict:[1]
2.27 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.
2.28 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.
2.29 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 (which served to limit the extent and targets of violence) than in the past. Inter-tribal fighting often results in the destruction of communal property and services (such as health clinics, schools and transport infrastructure) and in substantial numbers of internally displaced persons. Sources report national and provincial governments are disinclined to rebuild after such destruction.
2.30 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 (see Police). In Hela province, which has a population of 400,000 people, there are just 83 Royal Papua New Guinea Constabulary (RPNGC) officers, as noted by Prime Minister Marape in response to the July 2019 massacre. Often the RPNGC are outnumbered and outgunned by warring groups and can only intervene at significant personal risk.
2.31 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.
2.32 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.
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 6 September 2022, p 12.

In respect of traditional mediation systems and customary law, the DFAT report notes:[2]
5.8 A report by Human Rights Watch in 2015 (latest figures available) estimated there were around 1,600 Village Courts located across PNG, both in outlying rural areas and in and around cities and settlements. Servicing these are 18,000 village court officials of which only 780 are women. Since their inception at independence in 1975, Village Courts have played a vital role in providing access to justice for a significant portion of the population, particularly for dispute resolution within and between communities. Village Courts also play an important role in upholding matters of custom, being a hybrid of customary law and formal courts.
5.9 Tribal disputes are often brought before Village Courts, rather than higher level courts. Generally, a cash payment is offered as compensation to resolve the dispute. However, it may happen that the communities are not satisfied with the financial compensation offered, which could give rise to renewed fighting. In addition, Village Court mediations may foster impunity if the tribal fight involved crimes such as killing or rape and serious physical injury.
5.10 Village Courts provide people with an opportunity to seek justice that may not otherwise be available, particularly in rural areas. They have been criticised on occasion for hearing matters outside of their jurisdiction and for seeking to keep the peace rather than deliver justice, such as through dealing with sexual or domestic violence through reconciliation or compensation processes rather than referring them to District Courts, as required by law.
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 6 September 2022, p 23.
In respect of the availability of police protection, the DFAT report provides:[3]
5.3 The Royal Papua New Guinea Constabulary (RPNGC) is the national police force responsible for the investigation of crime and maintaining internal security in all regions of the country. At the time of independence in 1975, police services were estimated to only cover around 10 per cent of the country’s total land area and 40 per cent of the population. Since then, the size of the RPNGC has increased by only 30 per cent, while the overall population has more than quadrupled. In 2022, the strength of the RPNGC is approximately 5,500 personnel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC.
….
5.5 The effectiveness of the RPNGC is severely limited by resource and staffing constraints. The police are routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. Sources reported that a trial in 2022 in Central Province for serious sexual offences against a child only went ahead because of NGO support in the form of petrol funding for the police and necessary accommodation provided to the complainant and her mother. One close observer of the RPNGC suggested that, while the full complement of police stood at around 5,500, only around one quarter of these were fully effective as police officers. RPNGC officers endure poor working and living conditions, including low remuneration; frequently need to assert themselves in violent environments, often without weapons or protection; have family/clan obligations to meet; and are generally poorly trained, particularly on human rights. Some police are also disinclined to act in response to some GBV, SARV or tribal fighting offences due to sympathy for the alleged perpetrator(s).
5.6 DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, 6 September 2022, p 22-23.
Recent country information reinforces the limits of the police’s ability to provide effective protection. In response to recent outbreaks of tribal violence in the PNG highlands, police commanders have admitted that their manpower is ‘stretched to the limit’ forcing them to become ‘spectators’ while waiting for tribes to calm themselves down.[4]
[4] ABC News, 'Tribal fighting in PNG's highlands has escalated into guerrilla warfare, leaving desperate villagers with nowhere to go', available at AND REASONS
Credibility
In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. However, the Tribunal is not required to uncritically accept all, or any, of the applicant’s claims.[5] Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion made by an applicant has not been made out.[6]
[5] SZLVZ v MIAC [2008] FCA 1816 per Middleton J at [25].
[6] Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J at 451; Selvadurai v MIEA (1994) 34 ALD 347 per Heerey J at 348 and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal has considered its Guidelines on the Assessment of Credibility, which provides that:[7]
28. When forming a view on the credibility of claims, the tribunal should consider the overall consistency and coherence of an applicant’s account.
29. Traumatic experiences including torture may impact upon a number of aspects of an applicant’s case including the timeliness of an application, compliance with immigration laws, or the consistency of statements since arrival in Australia. They may also impact adversely on an applicant’s capacity in providing testimony of such events.
30. There may be differences in evidence about the same event if provided by two or more persons. Such differences may be due to an individual’s ability to recall an event and the emphasis and perspective placed on particular aspects of an event. The tribunal should be mindful of these differences when assessing credibility.
A person may not be able to remember all the details of his or her personal history or reconstruct the chronological order of particular events. A person may remember events that affected him or her most in emotional or physical terms but not the time sequence. Such confusion and forgetfulness do not necessarily imply that a person is not telling the truth. However, contradictions, inconsistencies and omissions in evidence may, although not necessarily, mean that a person’s evidence is unreliable and, therefore, lacks credibility. The lack of credibility of a person’s account because it is unreliable does not necessarily imply that the person is dishonest.
[7] Administrative Appeals Tribunal, Migration and Refugee Division: Guidelines on the assessment of credibility, July 2015, p 6.
At the first hearing, after having questioned the applicant about his background the Tribunal confirmed with the applicant’s representative how his statutory declaration came about. The Tribunal noted that the applicant’s statutory declaration stated that the contents therein had been read back to him, but it did not state how it was prepared. His representative replied that the statutory declaration had been prepared with the assistance of paralegals, interpreters and with the representative himself over three sessions. With this context in mind, the Tribunal has been careful not to draw adverse credibility inferences between the claims as they were expressed in the statutory declaration and the applicant’s oral evidence. In the present circumstances, the Tribunal stated it would use the statutory declaration and the helpful submissions of the representative to guide its exploration of the issues at hearing, but that it would carefully consider the evidence the applicant presented at the hearing.
Over the course of two hearings, the applicant presented a coherent and consistent account of his past experiences in Papua New Guinea. The applicant was forthright with his responses to the Tribunal’s questions and was frank in his admissions as to why his previous evidence was different to what was presented before the Tribunal. As such, the Tribunal finds the applicant to be a credible witness and it accepts the applicant’s evidence in full. Any doubt that the Tribunal had about the genuineness of the applicant’s claims were adequately addressed by the applicant and his representative. These aspects are discussed below.
At the second hearing, the Tribunal put to the applicant under s 424AA evidence from his protection visa interview which were inconsistent with the evidence presented at hearing. The Tribunal noted that in his protection visa interview, the applicant stated that his father died after the fighting, whereas at the hearing he had stated that his father died and left him the land and the fighting occurred after that. The applicant also stated in his protection visa interview that the [Tribe 1] took over the land, whereas at hearing he claimed at the land remains unused. In reply, the applicant stated that at the time of the interview he was confused and did not have any support or advice, and that his evidence remains that the [Tribe 1] tried to take over the land, have committed sorcery and that the threats to kill him take over the land remain ongoing. The applicant conceded that the land remains untouched and unused now.
At both hearings, the Tribunal raised concerns about the fact that the applicant’s land is currently unused, and that this may suggest that the [Tribe 1] no longer have interest in the land or the applicant. The applicant replied that their custom is that the land remains his property and the [Tribe 1] must kill him or fight him to take over the land. The applicant stated that as long as he remains alive, the [Tribe 1] cannot use the land. He conceded that if he were to remain in Australia, the land would remain unused. However, if he were to return, the [Tribe 1] would want to kill him and claim the land. On balance, the Tribunal is willing to accept the applicant’s explanation, noting that land issues are rooted in customary law in Papua New Guinea. Moreover, that the two tribes are connected by family and that the land has been part of the applicant’s family for at least two generations, in the Tribunal’s view, lend support to applicant’s explanation that this custom is being observed.
Having considered the applicant’s response and having regard to its Guidelines on the Assessment of Credibility, the Tribunal accepts that traumatic experiences may impact on the consistency of statements since arrival in Australia. Notwithstanding his earlier evidence, the Tribunal prefers and accepts the evidence given by the applicant at hearing.
The Tribunal also put to the applicant under s424AA information in respect of the file note attached to his pre-hearing submission. The Tribunal explained to the applicant that the file note appears to contain instructions to remedy inconsistencies between the applicant’s statutory declaration and the letter of support written by his sister, [Ms A]. The Tribunal explained that if it relied on that information, it may put no weight on his sister’s letter of support and it may also cast a doubt on the applicant’s credibility. The applicant’s representative explained that the file note formed part of the process of ensuring zealous representation of his client to ensure that there were no errors or mistakes. The representative stated that the only thing that changed from the sister’s letter of support, and the version presented to the Tribunal, was the date of [Mr A]’s death based on the documentary evidence of the death certificate and the dates of the elections. The Tribunal accepts the representative’s explanation and in turn gives weight to the sister’s letter of support as corroborative of the applicant’s claims.
The Tribunal also discussed with the applicant the aspects of his delay in applying for protection, and having considered his evidence, accepts that he did not receive help from his brother, and that the applicant had little means, knowledge or legal assistance upon arrival to apply for protection. The Tribunal does not draw any adverse credibility inferences in relation to his delay in making a protection visa application.
Lastly, the applicant explained that in his protection visa application he had included a support letter purportedly from his niece. The applicant explained that this was not true. He explained that no one helped him at the time, and the letter came from a friend of his on Facebook who agreed to help. He did not understand what was in the letter and attached it to his application. The Tribunal also accepts this explanation and draws no adverse credibility inference in relation to it.
Refugee findings
As noted above, the Tribunal finds the applicant’s evidence to be credible and consistent with events outlined in his statutory declaration. Further, his claims are also credible when considered against the country information outlined above.
The applicant’s representative submitted, and the Tribunal so finds, that the applicant fears persecution for his membership of a particular social group, namely, a ‘member of the [Tribe 2] village tribe’ (s5J 1(a)). Having regard to s 5L(a)-(d) the Tribunal finds that the ‘[Tribe 2] village tribe’ to be a particular social group. The Tribunal is satisfied membership of the Haga tribe is a characteristic shared by each member of the group, and the applicant shares, or is perceived as sharing that characteristic. The Tribunal finds that the characteristic distinguishes the applicant from society at large and is not a fear of persecution.
On the evidence before it, the Tribunal finds that, if returned to Papua New Guinea, the applicant faces a real chance of persecution from members of the [Tribe 1]. The Tribunal finds that the applicant would return to his village where he has lived all his life. The applicant would do so against a backdrop of past and ongoing tribal violence, where he has been previously injured, members of his tribe including his uncles, children and brother have been killed, and his house destroyed by the [Tribe 1]. The Tribunal finds there is a real chance that he will be identified by the [Tribe 1] as being a member of the [Tribe 2] and the owner of the land, placing him at risk of serious harm, including the risk of being killed or poisoned (s5J (1)(b)). On the evidence before it, the Tribunal finds that the real chance extends to all areas of Papua New Guinea (s5J(1)(c). In making this finding, the Tribunal notes, in particular, the country information which suggests that the risks associated with tribal violence may not be ameliorated by relocation to another part of Papua New Guinea.
While the applicant is arguably at greater risk of harm than other members of his tribe because he is the landowner, in the context of the ongoing tribal violence outlined above, the Tribunal is satisfied that his membership of the [Tribe 2] is the essential and significant reason for the persecution, and that the persecution involves systematic and discriminatory conduct (s 5J 4(a) and (c)).
The Tribunal finds on the evidence and country information before it that the applicant cannot rely upon the Papua New Guinea police to provide protection to him, and as such, there are not effective protection measures available to the applicant: s 5J(2). Indeed, the applicant attempted to secure police protection in the past to no avail. Nor is this a case where the applicant can take reasonable steps to modify his behaviour in order to avoid a real chance of persecution (s 5J(3)).
The Tribunal, having considered all of the applicant’s claims both individually and cumulatively accepts that the applicant has a well-founded fear of persecution and is a refugee for the purposes of s 5H.
Having found that the applicant is a refugee the Tribunal has also considered whether the applicant has a right to enter and reside in another country other than Australia. The Tribunal finds that the applicant does not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection findings
Having concluded that the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a).
Khanh Hoang
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
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.
…

[2024] AATA 1317

22 January 2024

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