1933681 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the protection visa application of an individual from Papua New Guinea. The applicant claimed to fear persecution due to ongoing tribal violence and a land dispute involving his tribe. The delegate of the Minister had previously refused the application, finding the applicant's claims not credible and not accepting that he would be targeted if returned to Papua New Guinea. The delegate also found no subjective fear of persecution due to a delay in the application and therefore made no assessments under sections 36(2)(a) or 36(2)(aa) of the Migration Act 1958.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a refugee within the meaning of section 5H of the Act, and thus whether Australia owed him protection obligations under section 36(2)(a). This involved assessing whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, namely his tribe, and whether effective protection measures were available to him in Papua New Guinea. The Tribunal also considered the complementary protection criterion under section 36(2)(aa), although this was not ultimately necessary for the decision.

The Tribunal found the applicant to be a credible witness, accepting his evidence in full after careful consideration of inconsistencies with his earlier interview. It determined that the applicant's tribe constituted a particular social group and that he faced a real chance of persecution from members of an opposing tribe if returned to Papua New Guinea, due to his membership in his tribe and his status as a landowner. The Tribunal noted that the police in Papua New Guinea were unable to provide effective protection in such circumstances and that relocation would not mitigate the risk. Consequently, the Tribunal concluded that the applicant had a well-founded fear of persecution and was a refugee for the purposes of the Act, and that Australia owed him protection obligations under 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 1958.