2014590 (Refugee)

[2024] AATA 4291

2014590 (Refugee) [2024] AATA 4291 (21 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Aishwarya Somal (MARN: 1577017)

CASE NUMBER:  2014590

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Mia Bailey

DATE:21 March 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 March 2024 at 3:28pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – land dispute and tribal violence – stabbed, relative killed and father’s death claimed to be related – later claims of fear of harm from people who paid for visa and group travel – scam by organiser in Australia – mental health – delay in applying for protection – vague and inconsistent claims and evidence, with significant gaps in chronology – social media postings of activities during period claimed to be living in hiding – anonymous information that dispute now settled – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36(2)(a), (aa), (2A), 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 2 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 June 2017. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.  

3. The applicant appeared before the Tribunal on 11 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

4. 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. Relevant provisions of the Act are extracted in the attachment to this decision.

5. 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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

   
   

   s 36(2)(aa) of the Act. 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 sufficient 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.[1] For the following reasons, I have concluded that the decision under review should be affirmed.

   [1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

   Background and receiving country

7. The applicant, a [Age]-year-old male, arrived in Australia as the holder of a Visitor (subclass 600) visa [in] February 2017.

8. The applicant has consistently claimed to be a citizen of Papua New Guinea (PNG). He provided copies of his PNG passport and Certificate of Birth Entry as part of his protection visa application. The delegate accepted that the applicant is a citizen of PNG and there is no information before me to the contrary. I find that the applicant is a citizen of PNG, and that PNG is his receiving country for the purposes of assessing his claims for protection. 

   Evidence before the delegate

   Protection visa application

9. According to his protection visa application:

   i.The applicant was born in [Town 1], Eastern Highlands Province.

   ii.His family members comprise of his parents and 3 sisters – [Ms A, B and C] – all of whom reside in PNG.

   iii.No details are provided of the applicant’s residential address or employment history.

   iv.He attended primary school ([Year] to [Year]) and high school ([Year] to [Year]) in [District], Eastern Highlands Province.

   v.He left PNG due to tribal fights over land. The fight has been ongoing for more than 5 years with countless lives being lost, properties damaged, and families displaced. As a male child, he will be targeted and killed because it is the male children who inherit the land. 

   vi.He was stabbed in the [body part] by the enemy clan and almost died due to loss of blood.

   vii.He filed a report with the local police, but nothing has been done because of the remoteness of his village and the enemy clan go into hiding to avoid the police.

   viii.He never moved because the enemy clan, who are from the neighbouring village, have easy access to every town and city in PNG; and the ‘more you move, you are seen and killed.’

   ix.If he returns to PNG, he fears being murdered or killed by the enemy tribe, mainly over land disputes.

10. The applicant submitted copies of 7 photos (undated) which appear to depict burning houses in a village and the body of a deceased man.

    Allegation received by the Department

11. In September 2017, the Department received an email from a person claiming to be from [District], Eastern Highlands Province, alleging that the applicant has made false claims in his protection visa application. The author alleged that the incident which occurred in the applicant’s home district prior to [Year] has been settled; both tribes are now reconciled; and the situation is peaceful and safe for him to return.  

    Protection visa interview

12. The applicant attended an interview with the delegate on 3 December 2019. A friend of the applicant’s, [Mr D], attended the interview as a support person. Relevant evidence from that interview is summarised below:

    i.He is from [Village] in Eastern Highlands Province. The nearest town is [Town 1], which is around 3 hours drive from [Village]. He is a member of the [Tribe 1]. His father is a tribal leader.

    ii.He attended primary and high school in Port Moresby. He finished high school in [Year]. After finishing high school, he applied for [college] but did not receive an offer so his father sent him to [Village] where 2 paternal uncles were living. For about 2 or 3 years before the fighting he lived in [Village] and undertook subsistence farming. Asked whether he ever had paid employment, the applicant responded no.

    iii.His father, who was [an occupation 1] for more than 30 years in Port Moresby, passed away in May 2018. At the time of his death, his father was retired and living in [Village]. His mother passed away a few months before his father. His 3 sisters live in Port Moresby – [Ms A] is married; [Ms B] is not married but has a child; and [Ms C], who lives with [Ms A], is still at school.

    iv.Asked where he was living before coming to Australia, the applicant stated that in the 2 years prior to his departure from PNG, he lived at [Accommodation] in Port Moresby, together with his parents and 3 sisters.      

    v.Asked about his relationship status, he stated that has never been married. In response to the delegate raising that in his visitor visa application he claimed to be married, he stated that is incorrect; this was written by [Mr E]. He was in a relationship in PNG for about one year and has a son, currently [Age] years old, who lives with his ex-partner in PNG. He is not in contact with his ex-partner or his son.

    vi.Asked about the tribal fighting, he stated that it involved his tribe and the neighbouring [Tribe 2]. While his father was living in Port Moresby, the [Tribe 2] took over his father’s land and planted crops. Although his 2 uncles were living in the village, the [Tribe 2] is a larger tribe, and his uncles could not prevent them taking the land. When he didn’t get accepted into [college], his father sent him to [Village], and this is when the fighting ‘got big’. Because of the fighting, he had to leave [Village]. Asked when this occurred, the applicant responded that it started in 2000.

    vii.Asked to describe the fight, the applicant stated that the [Tribe 2] raided his village at night and set fire to most of the houses. He was stabbed in the [body part] but managed to escape. He met up with one of his ‘uncles’ (a cousin of his father’s) – [Mr F] – who took the applicant to [District] station where there is a hospital. He then returned to Port Moresby. One of his uncles – [Mr G] – was killed during the fight. The applicant confirmed that one of the photos he provided in support of his application depicts [Mr G]’s dead body being taken to the station after the fight. The other photos depict houses burning in [Village]. After the fight, another uncle – [Mr H] – moved to a different part of PNG.

    viii.After returning to Port Moresby, he just ‘stayed at home’ until he came to Australia in February 2017. When the delegate noted that was a long time to stay at home, he stated that he was stabbed in 2014; this is when he was sent to [Village] after high school. The fighting began in 2000 and continued until 2014. It was in 2014 that the ‘biggest fight’ occurred between the 2 tribes. Asked what he did between 2014 and 2017, he responded that he did not work and stayed at home in Port Moresby while his father supported him.

    ix.Asked whether the [Tribe 2] tried to find him in Port Moresby, he stated that they came to Port Moresby looking for him and his father. People told them to be careful because their enemies were in Port Moresby. On one occasion, members of the [Tribe 2] ‘chased’ him and his father at a shopping centre. They had a fight in front of the shopping centre but managed to escape.

    x.Asked why the [Tribe 2] want to harm him and his father, he responded that if both of them are dead, the [Tribe 2] could claim the land. If he returns and tries to fight for the land, he will be killed. Even if he doesn’t fight for the land, he could still be in danger because the [Tribe 2] may think he will fight for the land.

    xi.Asked what has happened since his father’s death, he stated that the [Tribe 2] have claimed the land. Before he passed away, his father warned the applicant not to return. Asked why his son in PNG is not in danger, the applicant stated that he is safe because he lives with his mother and does not use the applicant’s family name.

    xii.The delegate discussed with the applicant extracts of postings from his [Social media] account, depicting him ‘out and about’ at various places in Port Moresby and seemingly leading a normal life, which suggest that he was not living in fear for his life. The applicant responded that the photos were taken around the [Accommodation] area, where he felt safe, but he could not go far beyond [Accommodation]. He cannot return to [Accommodation] because his parents previously had a house there, but his father is now dead.

    xiii.The delegate asked the applicant about a photo posted on his [Social media] account in August 2012 of a group of 5 men in work uniforms standing in front of [an Employer 1 vehicle]. The applicant stated that he worked for [Employer 1] for about 6 months as a casual.

    xiv.Asked about seeking help from the police, he responded ‘there is no point’ because the police cannot help. When asked whether he had ever tried going to the police, he stated that his father once did but nothing happened. 

    xv.The applicant raised new claims to fear harm from people in PNG in connection with his travel to Australia to attend a wedding. He stated that he came to Australia in February 2017 to attend the wedding of [Mr E]. A group of 30 people from PNG sent money (2,000 Kina each) to [Mr E] via Western Union to pay for the visitor visa application to travel to Australia for the wedding. Only 2 people – him and [Mr I] – came to Australia. The remainder of the group have not received their money back and think he is partly responsible. He has received threats from these people. He referred to receiving a threat from [Mr J], saying that he must repay the money or not return.

    xvi.Asked why he waited until 30 June 2017 to lodge a protection visa application if he feared harm on arrival, the applicant stated that he didn’t initially know that he could make such an application. He only learnt of this from [Mr E].          

    Post-interview submissions

13. On 9 December 2019 the applicant provided a supporting statement to the delegate. Relevant points are summarised below:

    i.The only place in PNG that was safe for him was [Accommodation] because all persons entering the [accommodation] went through a security checking process. He can’t return to [Accommodation] because it is for [specified people] and their families.

    ii.He cannot live with his sisters because his presence would put them at risk. In accordance with custom, as the only male child in his family, his father’s land has passed to him. Although the enemy tribe has claimed his father’s land, they know the land does not belong to them until he is dead.

    iii.His sisters are not at risk because they do not inherit land; they are part of their husband’s land and people. His son is safe as he long as he doesn’t use the applicant’s surname. 

    iv.He supported his family in the village as a subsistence farmer. He had some short-term casual jobs such as [job task 1] in [workplace 1s] and gardening but as the fighting got worse back in the village, his father told him to stop working and stay at home. Even when he wasn’t working, he was expected to ‘work around the house and help other families in the [accommodation].’

    v.Regarding the new claims raised at his protection visa interview, he stated that [Mr E] and his fiancée invited 30 people to come for their wedding on 11 February 2017, but the wedding never took place. Those that were supposed to come were angry because [Mr E] did not return their money. The applicant started receiving threats and was accused of planning it with [Mr E]. If these people see him in PNG, he is a ‘dead man’.  

14. On 10 December 2019, [Mr D], who states that he moved to Port Moresby in 2013, provided a supporting statement to the delegate in which he addresses areas of concern raised by the delegate. He expresses the view that the applicant’s son belongs to his mother’s family and would not be at risk due to conflict involving the applicant’s clan. In his view the applicant would be at risk in PNG due to the tribal war over land and the theft of 60,000 Kina by [Mr E]. Regarding the latter, he states that according to ‘contemporary and cultural practice’ and regardless of guilt or innocence, all organisers ‘share the blame and consequences’ which in this case is violence likely resulting in death. Based on his personal experience in Port Moresby and [District], he believes there would be no safe place for the applicant in PNG.  

    Delegate’s decision

15. The delegate found there to be significant credibility concerns regarding the applicant’s claims. These concerns include significant date inconsistencies regarding the conflict in [Village] during which the applicant was stabbed and the existence of extensive social media postings in the period following that incident which were not reflective of a person unable to leave their residence due to a fear of harm. The delegate considered the applicant’s father’s return to [Village] following his retirement to be inconsistent with claims of ongoing tribal conflict. The delegate was of the view that the provision of incorrect information regarding the applicant’s marital status in his visitor visa application raised concerns about his overall credibility. The delegate did not place any weight on the photos submitted by the applicant, noting they are of poor quality and have no identifying features linking them to the applicant. The delegate did not find any of the applicant’s claims regarding a tribal conflict with the [Tribe 2] to be credible.

16. The delegate accepted that inter-tribal fighting in PNG is pervasive and widespread. However, given that his claims to have been targeted in the past for reasons of his tribal affiliation were not accepted and there was no evidence to suggest that he would be targeted in the foreseeable future, the delegate found there to be no real chance of persecution and no real risk of significant harm.     

17. Regarding the claims that he has been threatened by members of the wedding party, the delegate noted that other than providing the name of a person – [Mr J] – the applicant provided no evidence to substantiate these claims. The delegate did not accept that, in circumstances where the money was paid to [Mr E] via Western Union, the remainder of the group would blame the applicant simply because he did travel to Australia and has a relationship with [Mr E]. The delegate did not accept these claims to be credible.

    Evidence before the Tribunal

    Pre-hearing evidence

18. On 5 January 2024, the applicant’s representative provided the following documents to the Tribunal:

    i.Submission from the representative in support of the applicant engaging protection obligations as a refugee or under complementary protection. The submission addresses various concerns raised by the delegate, including the applicant’s use of social media; the return of the applicant’s father to [Village]; and the delay in applying for a protection visa.  

    ii.Country of origin submission for PNG dated 22 December 2023 (Country Information Submission).

    iii.Statutory declaration of the applicant dated 4 January 2024 (First Statutory Declaration).

    iv.Photo of the applicant’s scar wound which depicts a scar near the side of the [body part].

19. The following is a summary of relevant information from the First Statutory Declaration:

    i.His parents were born in [District] but moved to Port Moresby because of his father’s [career]. He lived in Port Moresby with his parents and 3 sisters.

    ii.He was not able to undertake further education because of an inability to pay school fees. His father decided that he should return to [Village] and farm the land.

    iii.His father’s clan, to which he also belongs, is the [Tribe 1]. They used to own more land in the area than any of the surrounding clans. Because his father was away from the village for most of his life, and despite his uncles tending the land, some of his father’s land was claimed by the [Tribe 2], who planted crops.  

    iv.The conflict between the 2 clans, who share the same border, has been ongoing for a significant time. The [Tribe 2] far outnumbered the [Tribe 1] in terms of population but used to own less land. There were periods of peace, but an outbreak of violence is always lingering, waiting for any small trigger.

    v.Between 2014 and 2015, another big fight broke out. This is when he was stabbed near his [body part] by the [Tribe 2]. His uncle, [Mr G], was killed by the [Tribe 2] during the fight. He managed to escape the fighting and found his uncle [Mr F]. He was taken to a small station in [District] and treated for a blood clot. He was then taken by ambulance to [Town 1] Hospital where he remained for 2 to 3 days. He does not have any records of his treatment at [Town 1] Hospital. He has provided a photograph of the scar, beneath his [body part], from his stab wound.

    vi.He filed a report with the local police, but the [Tribe 2] clan members involved in the fight went into hiding and the police could not do anything.

    vii.He returned to Port Moresby by plane after being discharged from hospital. He moved around a lot, mostly staying in Port Moresby, and lived his life in fear, constantly looking over his shoulder. He did not live with his family because he did not want to endanger them. He mostly resided with friends and moved from place to place. He did not stay in any one place for long as it was too risky and dangerous. There were times when he was lucky to eat 2 meals per day because he only ate when the friends he was staying with ate.

    viii.He was lucky to have had some odd jobs, but none were permanent. He only took jobs that did not risk his safety such as [an occupation 2] at a [workplace], that did not require him to move around much and lessened the likelihood that he would be seen.

    ix.He tried moving to other places in PNG. He could not go to Lae or Madang because they were a short drive from [Village]. He spent most of his time hiding in Port Moresby because you can only travel from [Village] to Port Moresby by plane. He still kept a low profile because people talk and information spreads and he was worried the [Tribe 2] would come to know his location. At times he tried to hide his identity when he was out by wearing a big hat or sunglasses. He did not even tell his family exactly where he was staying to protect them. He kept in contact with his family via his friends and saw his family from time to time.

    x.The [Tribe 2] clan are not aware that he has a son. To protect his son from the fighting he has tried to hide him. He moved to Australia when his son was less than 1 year old. He posted some photos of his son on social media because he was excited. He did not realise at the time that this could place his son in danger. He came to realise this when he attended his protection visa interview and has not posted any photos of his son since. He lost contact with his son and ex-partner when he changed his SIM card and lost all his contacts. He has no way of contacting or finding them.   

    xi.His father went back to [Village] to try to settle the land dispute. His father told him not to return to the village until the dispute was settled. His father was unable to settle the dispute which led to the applicant ‘being on the run.’

    xii.When [Mr E] invited the applicant to attend his wedding in Australia, he saw this as an opportunity to escape temporarily from his situation and he wanted to attend the wedding of a ‘good friend.’ He sent money to [Mr E] to arrange his visitor visa. Only the applicant and one other person received visas and travelled to Australia. The others thought that he was involved with [Mr E] in a scam to steal their money. He received a lot of threatening messages and voicemails via Whatsapp. He is unable to provide evidence of these threats because he changed his SIM card and lost all his previous contacts.    

    xiii.After [Mr E]’s wedding did not take place, the applicant stayed at [Mr E]’s house and worked on his [workplace 2]. Their relationship started to break down as tensions between them grew. He thought that [Mr E] was helping him with his ‘visa and employment’ and didn’t realise that he did not have work rights on his visitor visa. After [Mr E] threatened to report the applicant to the Australian authorities for illegally working, he realised that [Mr E] was not assisting him with his visa. Before the applicant left [Mr E]’s house, [Mr E] suggested to the applicant that he could apply for a protection visa. He has since ceased contact with [Mr E].

    xiv.When he attended the Department’s office in connection with his protection visa application, he provided ‘all the evidence [he] had access to’. The Department did not return this evidence, so he no longer has access to it.

    xv.His father passed away in May 2018 without having resolved the land dispute. His mother passed away shortly after his father. Since his father’s death, half of the land has been taken over by the [Tribe 2] clan. The remaining half is used by [Tribe 1] clan members who were close to his father. He no longer has any close or blood relatives in [Village]. Returning to [Village] without any familial support would definitely result in his death.

    xvi.The only family members in PNG that he maintains contact with are his sisters. He keeps in touch with his youngest sister, [Ms C], who is studying [subject] at [University]. He has occasional contact with his other 2 sisters – [Ms A and B]. [Ms A] has moved to [Town 2] and [Ms B] is in Port Moresby.

    xvii.He fears harm in PNG from the [Tribe 2] clan and members of the wedding party who did not travel to Australia. He cannot return to Port Moresby because some members of the wedding party live in Port Moresby and could easily locate him. It is highly possible that he would be killed as soon as they become aware of his return.    

    Evidence provided at Tribunal hearing

1. The applicant attended the Tribunal hearing in person, together with his representative. His current de facto partner, [Ms K], attended as a support person.

2. The applicant stated that he completed the protection visa application himself, with some assistance from [Mr E]. Asked about the reference in the First Statutory Declaration to providing documentary evidence to the Department which was not returned, he clarified that he is referring to copies of the photos submitted as part of his protection visa application.

3. The applicant confirmed that both his parents passed away since his departure from PNG. His father passed away in May 2018 and his mother in 2019. When raised with the applicant that at his protection visa interview, he stated that his mother passed away a few months before his father, he responded that this was not correct. At the time of her death, his mother was living in [Suburb 1], Port Moresby with his sister, [Ms B]. His father was living in [Village] when he passed away. Asked about the cause of his father’s death, the applicant stated that he was killed by the [Tribe 2] clan.

4. Asked about his father’s work, he stated that he was [an occupation 1] with the ‘[Section]’ of the [Employer 2]. His father was retrenched somewhere between 2012 and 2014 but he and his family continued living at [Accommodation] until late 2015 or early 2016. After leaving [Accommodation], his family moved to [Suburb 1] in Port Moresby where his sister, [Ms B], had bought land and he moved out and lived with ‘different people’. After his family had settled at [Suburb 1], his father returned to [Village] to sort out the issues with the land. Asked how long his father lived in [Village], he stated that he lived there for ‘not more than 1 year’.

5. Regarding the current whereabouts of his 3 sisters, the applicant stated that [Ms A], who is married, moved from Port Moresby to [Town 2] in around 2022 for her work with [Employer 3]. [Ms B] is now married and living at [Suburb 1] in Port Moresby. [Ms C] is not married; she lives in Port Moresby and is studying at university.

6. Regarding his ex-partner (the mother of his son), he stated that they met in around 2015 or 2016 at a gathering with friends and were in a relationship until late 2016. He last had contact with her in around 2017. He had to change his SIM card in 2018 and this led to him losing all his contacts. He still uses [Social media].

7. Asked about his place of residence while growing up, he stated that he was born in [Town 1] but moved to [Accommodation] in Port Moresby as a baby. He and his family only returned to [Village] for holidays of around one or 2 months while his father was on leave.

8. Asked about his place of schooling, he responded that he went to primary and high school in Port Moresby. When asked why his protection visa application stated that he attended primary and high school in [District], he stated that he doesn’t know but when his family returned to [Village] for holidays, he would temporarily attend school in [District].  

9. Regarding his age at the time he finished high school, he stated that he was between 18 to 20 years old, which he agreed would mean he finished school between [Year] and [Year]. Asked what he did after finishing school, he stated that he went to Lae [College] for about 8 to 10 months but had to leave because his school fees were unpaid. He then returned to Port Moresby and worked in various casual jobs, mostly [occupation 2] jobs. Asked when his father sent him to [Village], he responded that he doesn’t know; it was after he returned from Lae. I discussed with the applicant that there is a significant gap between his finishing school and the date that he previously claimed to have moved to [Village] (2014/2015). I also discussed with the applicant that there is some inconsistency between his current evidence and that provided at his protection visa interview, where he said that his father sent him to [Village] after finishing high school because he was not accepted into [college]. He responded that he did not immediately get accepted in [college] and stayed in Port Moresby for a while before moving to Lae.

10. I asked the applicant what he did in the period between returning to Port Moresby from Lae and moving to [Village], to which the applicant was unable to provide a clear response. Asked to clarify the approximate date that he moved to [Village], he responded that it was before 2017. Asked how old he was at the time he lived in [Village], he stated that he doesn’t know. He has only come to realise the importance of dates since his arrival in Australia; it was not important in PNG. He recalled that he lived in [Village] for ‘not more than 1 year’ and confirmed that during this period he did not return to Port Moresby.

11. I asked the applicant whether he agreed with the claim in his First Statutory Declaration that his father sent him to live in [Village] in around 2014 to 2015. He responded that may be correct, because it was after he returned from [Village] to Port Moresby that he met his ex-partner (son’s mother). I referred to the photo posted to his [Social media] account in August 2012, which he confirmed at the protection visa interview was taken during a period of casual employment with [Employer 1] in Port Moresby. The applicant agreed that he worked as [an occupation 2] for [Employer 1] for about 6 months. Asked whether that was before he moved to [Village], he responded that he thinks it was after he returned to Port Moresby.

12. I raised with the applicant that, while I understood he may have difficulty in recalling exact dates, I have concerns about the significant gap in the chronology of events and inconsistencies in his evidence about when he moved to [Village]. He responded that he cannot recall; he has smoked a lot of cannabis and done other things he shouldn’t have done.

13. I asked the applicant why his father would wish for him to move to [Village] if the only work opportunities were subsistence farming, given that he had other work opportunities in Port Moresby. He stated that he had to be present on the land to demonstrate his family’s ongoing claim to the land. Asked why his uncles could not perform that role, he stated that they and their families could also take the land for themselves. When asked why his father would send him to [Village] if it was dangerous because of ongoing tribal conflict, he responded that his father always wanted to make peace but that never happened.  

14. Asked about the claim in his First Statutory Declaration that he filed a report with the police, he stated that he went to the police at [District] station, before he was taken to the hospital in [Town 1]. They took a statement from him, but he didn’t hear anything further. I discussed with the applicant that this appears inconsistent with his evidence at the protection visa interview, where he claimed to have never gone to the police because there is ‘no point’. He responded that he meant he had never gone to the police in Port Moresby, but he did go to the police in [District].

15. Asked what he did after returning to Port Moresby, he stated that mostly he moved around and avoided staying in one place. Asked why he did not return to live with his family in [Accommodation], he responded that it was not safe for him and his father to be in the same place, in case they both were killed.

16. I referred to the claim in his First Statutory Declaration that he tried living in other places in PNG and asked where else he had lived. He initially stated that he moved to Lae, then amended his evidence to state that he did not move to Lae. He moved to Madang for ‘not more than one week’. He could not recall moving anywhere else in PNG.

17. Asked what was occurring in Port Moresby that caused him to feel he had to keep moving, he referred to the ‘fight with the [Tribe 2]’ and indicated that he feared harm from ‘the enemy clan’. When asked why the [Tribe 2] was seeking to harm him in Port Moresby, he stated that he is the one that inherits the land after his father dies, not his sisters. I noted that his father was still alive at that time and queried whether the Kamata were also seeking to harm his father. He agreed that his father was also at risk and that is why he and his father could not stay together. Asked whether anything happened to his father while he lived in Port Moresby, he stated no but he watched his movements.

18. I asked the applicant about the claim raised earlier in the hearing that his father was murdered by the [Tribe 2] in [Village]. He stated that this occurred after he arrived in Australia so all he knows is what was told to him by his sister [Ms A]; that his father was murdered by the [Tribe 2] and it was related to the land dispute. I discussed with the applicant that at no time prior to the Tribunal hearing has he mentioned that his father was murdered. This includes at the protection visa interview and in his First Statutory Declaration. I noted that this was significant information regarding his protection claims and the late disclosure may cause me to doubt the credibility of this claim. I explained to the applicant that, because he did not raise this claim before the delegate made their decision, under the Act I would need to consider whether he had a reasonable explanation for not doing so. If I were to find that he did not, I would be required to draw an unfavourable inference about the credibility of the claim. Asked why he did not previously raise this with the Department, he stated that he did not want to talk about it. He referred to a cousin who was murdered in [Town 2], stating that ‘they chopped his neck off’. He has pictures of this and could have given them to the delegate, but he wants to forget these things.

19. I asked the applicant about his claim to fear harm from persons invited to [Mr E]’s wedding. He stated that he doesn’t know why only 2 (him and [Mr I], who is [Mr E]’s brother) out of 30 persons in the group were able to travel to Australia because [Mr E] arranged all the visitor visa applications. Asked why [Mr E] arranged the visas, rather than the applicants themselves, he stated that he later came to know that [Mr E] was a ‘contractor’. He did not know [Mr E] from PNG. He saw a post from [Mr E] on [Social media] that he was looking for [occupation 3s] to come to Australia and saw this as ‘his way out’ of PNG. [Mr E] said he could bring people to Australia to attend his wedding for a fee of 2000 Kina each.

20. Asked whether he knew [Mr I] from PNG, he stated that they only met in Port Moresby, shortly before travelling to Australia. The group of 30 were ‘moving around in Port Moresby’ together. Asked whether he knew any of the others in this group, he stated he had never met them before; 3 others were from Port Moresby and lived a few blocks from him.

21. Asked about the threats he received from others in the group, he stated that they were trying to speak with [Mr E] to find out what was happening; at this time, he was living with [Mr E] in regional Victoria. [Mr E] kept avoiding them and left it to him and [Mr I] to deal with. The group had his contact details via [Social media] and WhatsApp and kept sending him messages via WhatsApp, threatening that if they didn’t receive their money, he would be killed if he returned to PNG. This lasted until he moved to Queensland and changed his SIM card. I noted that they also had his [Social media] details and asked why they couldn’t contact him via [Social media]. He responded that he did receive some threats via [Social media], but he ‘blocked them’.

22. I asked the applicant whether [Mr J] was a friend of his in PNG, to which he responded ‘yes’. Asked whether [Mr J] was part of the group that was meant to travel to Australia, he responded ‘yes’. I raised with the applicant that he had just told me he didn’t know any of the people in the group. He responded that [Mr J] lived a few blocks away from him, but they have not been friends for long. I discussed with the applicant a photo posted on his [Social media] account in December 2015 which depicts him drinking with 2 others, with a caption that suggests that one of those persons is [Mr J]. This suggests that he knew [Mr J] since at least 2015. When the photo was shown to the applicant, he responded that [Mr J] is not in the photo, but he ‘tagged’ [Mr J] in the post. One of the people in the photo is [Mr J’s] brother – [Mr L] – who was also part of the group that was supposed to travel to Australia. He only knows [Mr J] because he lives nearby; sometimes they saw each other but he doesn’t ‘really know him’.

23. Asked whether his family members in PNG have experienced any problems because of the unpaid money, he stated no. [Mr J] knows that he has family in PNG but has not met them personally. I discussed with the applicant that this incident occurred in 2017 and there appear to have been no threats since 2018. I may not accept that this would lead to a risk of harm for him if he were to return to PNG. He responded that they will not forget what happened and even if they are not sending him threats, if they saw him in PNG he would be at risk.

24. I also discussed with the applicant that the evidence provided at the hearing regarding this claim differs significantly from his previous evidence to the Department which indicated that a group of friends from PNG, including [Mr J], were travelling to Australia to attend the wedding of a friend ([Mr E]).

25. I explained to the applicant that I will send a letter following the hearing raising some adverse information regarding his claims and providing him with an opportunity to comment. I briefly outlined that information for his awareness, namely the allegation received by the Department; inconsistencies between his oral evidence provided at the protection visa interview and his evidence to the Tribunal regarding his place of residence following his return to Port Moresby from [Village]; and the social media postings during the period following his return to Port Moresby and his departure to Australia.

26. Asked whether there was anything further that he wished to raise, he responded that he cannot return to PNG because his life is in danger. He could not stay with his sisters because he would be putting their life in danger. If ‘they can’t get to him, they will get to his sisters’.   

    Post-hearing evidence

27. On 12 January 2024, the Tribunal wrote to the applicant under s 424A of the Act, raising information that may form the reason, or part of the reason, for affirming the decision under review, and explaining the relevance of that information, as summarised below:

    i.In September 2017, the Department received correspondence from a person claiming to be from [District], Eastern Highlands Province, alleging that the applicant made false claims in his protection visa application. It is alleged that the incident which occurred in the applicant’s home district prior to 1998 has been settled; both tribes are now reconciled; and the situation is now peaceful and safe. This information may be relied on in assessing the credibility of the applicant’s protection claims regarding harm feared in PNG due to a tribal conflict with the [Tribe 2] clan.

    ii.During the protection visa interview, oral evidence was provided by the applicant that he lived at [Accommodation] in Port Moresby, together with his parents and sisters, for about 2 years prior to departing PNG. Regarding what he did during the period 2014 and 2017 (after returning to Port Moresby from [Village]), he stated that he stayed at home and was supported financially by his father. This is significantly inconsistent with claims made in the First Statutory Declaration and oral evidence provided at the Tribunal hearing that after returning to Port Moresby from [Village] following the conflict in 2014/2015, he did not live with his family in Port Moresby; rather he moved around a lot and mostly lived with friends. These inconsistencies may be relied on in assessing the credibility of his protection claims regarding harm feared in PNG due to a tribal conflict with the [Tribe 2] clan.

    iii.During the protection visa interview, the delegate referred to extracts of [Social media] postings made by the applicant and members of his family (a copy of the [Social media] extracts was provided as part of the s 424A letter), including:

    a.photos posted by the applicant on his [Social media] account between December 2014 and November 2016 which depict him at various named public places in Port Moresby. This information may be relied on in assessing the credibility of his protection claims regarding harm feared in PNG due to a tribal conflict with the [Tribe 2] clan, including the claim that he was ‘in hiding’ in Port Moresby, in fear for his life after returning from [Village] in 2014/2015.

    b.Photo posted by the applicant on his [Social media] account on 14 December 2015 depicting him with 2 other men, with the caption ‘And we are still drinking, yep… - with [Mr J]’. This information appears inconsistent with his oral evidence provided at the Tribunal hearing in which he claimed to not know any of the others in the group that was intended to travel to Australia, which included [Mr J], before meeting them in Port Moresby shortly before the proposed travel. This information indicates that he was friends or acquainted with [Mr J] since at least December 2015. This information may be relied on in assessing the credibility of his protection claims regarding harm feared in PNG from a group of persons who paid money to [Mr E] to travel to Australia in early 2017.

28. The Tribunal invited the applicant to give comments on or respond to the above information in writing by 29 January 2024. On 19 January 2024 the Tribunal received a request from the applicant’s representative for an extension of time to respond to the s 424A invitation, to enable relevant medical information to be obtained. It was noted that the applicant has booked an appointment with a medical practitioner on 22 January 2024, however, further time is required for coordination with other healthcare professionals. The Tribunal agreed to an extension of time for response until 8 February 2024.

29. On 6 February 2024 the Tribunal received a request from the applicant’s representative for a further extension of time to respond to the s 424A invitation. The representative advised that at his medical appointment on 22 January 2024, the applicant was referred to a psychologist and attended an appointment with the psychologist on 2 February 2024. The psychologist has advised that a minimum of 5 sessions are required to complete a clinical assessment and formalise a diagnosis for the applicant. The Tribunal agreed to a further extension of time for response until 7 March 2024.

30. On 7 March 2024, the Tribunal received a response to the s 424A invitation, as outlined below.

    Submission from the applicant’s representative

31. Regarding the allegation received by the Department, it is submitted that the information provided in support of the review application, including the photographic evidence of the applicant’s cousin’s death in 2018, disputes the assertion that the conflict has been resolved. The representative questions the weight that should reasonably be given to the allegation in assessing the credibility of the applicant’s claims.

32. Regarding inconsistencies in the applicant’s evidence of his movements between 2014 and 2017, the applicant submits that his 2024 evidence is more accurate than his 2019 evidence.  He confirms that after returning to Port Moresby following the conflict in 2014/2015, he did not live with his family and had to keep moving as it was not safe. The applicant is unsure of why he would state otherwise at his protection visa interview but suggests that the ‘closeness of the 2019 interview from the events may have resulted in him forgetting or rushing through details.’

33. The representative refers to the Psychological Opinion (discussed below) which finds that the applicant meets the provisional diagnosis for Post-Traumatic Stress Disorder (PTSD) and submits that his PTSD symptoms, together with English not being his first language, explain the inconsistencies in his evidence. The representative requests that the Tribunal consider the applicant’s 2024 evidence as being more accurate.

1. The representative highlights the importance of the applicant’s provisional PTSD diagnosis and refers to the psychologist’s belief that the applicant reasonably feared for or was apprehensive for his wellbeing and feared for his life in PNG as supporting his claims for protection.

2. Regarding the applicant’s social media postings, he acknowledges that he displayed a lack of awareness regarding the potential risks and only came to realise this when it was brought to his attention during the protection visa interview. The representative submits that, despite these postings, the applicant was unable to lead a relatively normal life and they should not diminish his experience of fearing for his life. It is submitted that the applicant’s social media does not ‘diarise the fear he was feeling daily’ and his frequent mobility during this period may have mitigated any risk of being located through his use of social media.

3. Regarding the social media post referencing [Mr J] and potential inconsistency with the applicant’s oral evidence to the Tribunal, the applicant acknowledges that he took the photo and ‘tagged’ [Mr J], but [Mr J] is not present in the photo. Rather, [Mr J’s] younger brother – [Mr L] – is one of the people in the photo and was part of the group that was meant to travel to Australia. The applicant was not familiar with [Mr J] as he was with [Mr L] and only knew [Mr J], who lived a few streets away from where the applicant was living at the time, through mutual connections. It is submitted that it is common in PNG to ‘tag’ persons who are not in the photo but have a ‘strong following’ and are associated with the post. Although the applicant was in hiding at the time, it was beneficial for him to socialise and build connections to ensure his protection.   

   Psychological Opinion

4. As referenced above, the applicant has submitted a report dated 1 March 2024 from [Ms M], Provisional Psychologist, co-signed by [Ms N], Principal Clinical Psychologist of ‘[Psychology provider]’ (Psychological Opinion) which includes the following relevant information:

   i.The applicant’s initial session with [Ms M] was via telephone on 2 February 2024, with 2 further sessions on 16 February 2024 and 27 February 2024[2] via video call.

   ii.The applicant has reported that he suffered harm from ‘the fighting’ when he was physically stabbed. When discussing this incident, the applicant appeared to become distressed and emotional, avoided eye contact and ‘zoned out’. He later reported to the psychologist that he had wet himself.

   iii.[Ms M]’s professional opinion is that the applicant reasonably feared for or was apprehensive about his own wellbeing and he believes that he will be hunted down and killed if he returns to PNG.

   iv.[Ms M]’s professional opinion is that the applicant meets the criteria for a provisional diagnosis of PTSD, with reference to diagnostic test results (obtained from the session on 23 February 2024) provided. The applicant’s symptoms are discussed against the diagnostic criteria for PTSD. This includes reference to the applicant reporting feeling daily shame and guilt regarding his father’s passing. He ‘blames himself for what happened and thinks that he should have stayed and be killed instead of his father.’

   v.Regarding whether [Ms M] is of the view that the applicant’s symptoms include difficulty in remembering and concentrating, she states that during the session on 23 February 2024 the applicant could recall being stabbed but the events surrounding it were unclear to him. [Ms M] considers it likely that the applicant was dissociating during the session, which is a common trauma response and adaptive defence in response to high stress or trauma, characterised by memory loss, depersonalisation, derealisation, identity confusion and identity alteration.

   vi.Results are provided of a screening test (carried out during the session on 23 February 2024) for dissociative symptoms and experiences specific to dissociative disorders, showing that the applicant scored in the range for severe dissociative and PTSD symptoms. There are no signs of neuroticism or psychosis. [Ms M] states that likely due to traumatic events, ‘given the high scores executive functioning is affected’ including concentration, memory, and recall.

   vii.In [Ms M]’s professional opinion, it is likely that when the applicant is required to talk about a traumatic memory, he will have difficulty in recalling the event as his brain is processing the trauma. This would be exacerbated during a hearing where he was subject to questioning by a professional.

   viii.[Ms M] notes that due to English not being the applicant’s first language, ‘at times he does not understand everything and this needs to be explained in words’.          

   Statutory declaration of the applicant and supporting photos

   [2] All other references in the report are to 23 February 2024, indicating that 27 February 2024 is a typographical error.

5. In a statutory declaration dated 7 February 2024 (Second Statutory Declaration) the applicant states (in summary):

   i.Since the mid-1980’s until the present there is ongoing tribal warfare between the [Tribes 1 and 2] in [District]. The fighting cannot be stopped because of the lack of good roads and telecommunications and limited power of the police.

   ii.In 2014, while in [Village], he was almost killed by members of the [Tribe 2] tribe. In mid-2018 his father fell victim to the same tribal conflict and was killed by members of the [Tribe 2]. He finds it extremely difficult to speak about his father’s death, so has previously avoided discussing it with the Tribunal. Thinking about the death of his father brings a lot of pain, anxiety, and extreme sadness.

   iii.The tribal fight between the [Tribes 1 and 2] extended beyond his village and into other areas of PNG in the form of revenge killing or harming. While he was on the run in Port Moresby he was constantly faced with the threat of tribal violence. On 22 January 2018 his cousin was murdered in [Town 2Province] which shows that no place in PNG is safe.

   iv.The applicant refers to various aspects of his life in Australia, including his relationship with [Ms K], his employment, and his involvement in several community groups and requests that the Tribunal consider his dedication to being a responsible member of Australian society.

6. A PDF file containing several photos, claimed to depict the applicant’s cousin’s dead body, were also submitted.

   Letter from [Mr O]

7. A letter dated 26 January 2024 from [Mr O], Senior Constable, Royal PNG Constabulary, states that he has served as a police officer for more than 30 years and has a ‘vast knowledge in operational and the administration of Policing’ in PNG. He has been requested to confirm the threats against the applicant, who originates from an area where tribal fighting and killings are very common. There is currently a conflict between the [Tribes 1 and 2] in [District] ‘where so many properties destroyed and many lives lost’. According to [Mr O], the applicant will be ‘restlessly man-hunted’ throughout PNG and if caught would be killed. 

   Other supporting documents

8. A statutory declaration of [Ms K] dated 7 February 2024 provides details of the nature of her relationship with the applicant which commenced in November 2018, including their ongoing genuine commitment and household and financial arrangements. 

9. Character references are provided from [Ms P], President of [Organisation 1] (dated 22 January 2024) from and [Mr Q], President of [Organisation 2] (dated 29 January 2024).

   Findings of fact

10. In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[3] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]

    [3] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015

    [4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

    [5] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.

11. I have had regard to all the available evidence, as outlined above. While I acknowledge the positive character references from [Ms P] and [Mr Q] and [Ms K]’s evidence regarding her relationship with the applicant, I do not consider these to contain any evidence of relevance to my assessment of whether the applicant engages protection obligations with respect to PNG. 

12. I have not given any weight to the untested allegation received by the Department in September 2017. I have also not given any weight to the supporting statement provided by [Mr D] to the Department. The nature of [Mr D]’s personal knowledge of the applicant’s circumstances is not specified. In his First Statutory Declaration the applicant refers to [Mr D] as a family friend who knows a lot about his family, clan, and history because he likes to ‘mingle with the local people to get to know them’. I note that the applicant claims to have lost contact with [Mr D] when he changed his SIM card in 2018.

13. In assessing credibility, the delegate placed some weight on inconsistencies between the applicant’s visitor visa application and evidence provided as part of his protection visa application regarding whether he is married and has a child. I accept the applicant’s claim that this error arose because [Mr E] completed the visitor visa application and have not given this any weight in assessing the credibility of the applicant’s protection claims. As above, I accept the applicant’s evidence that he never married in PNG and has a son.  

14. While there have been inconsistencies regarding certain aspects of the below claims, I am satisfied that they are not significant and accept the following as credible:

    i.He was born in [Town 1], Eastern Highlands Province.

    ii.He belongs to the [Tribe 1] which is based around [Village] near [Town 1].

    iii.His father owns land in [Village] which, on his father’s death, passes to the applicant.

    iv.His father was employed with [Employer 2] for approximately 30 years.  He was retrenched in around 2012 to 2014.

    v.The applicant moved to Port Moresby shortly after his birth and resided in [Accommodation] in Port Moresby with his parents and 3 sisters. He and his family only returned to [Village] for holidays for a few months, while his father was on leave.  

    vi.He attended primary and high school in Port Moresby and completed high school between [Year] and [Year] (aged 18 to 20).

    vii.After completing high school, he attended [college] in Lae for slightly less than one year before returning to Port Moresby.

    viii.He worked in various casual jobs in Port Moresby, including as [an occupation 2] for [Employer 1] for around 6 months in 2012.

    ix.For approximately one year from 2015 or 2016, while residing in Port Moresby, he was in a relationship with a woman and they have a son, born in late [Year], who resides in Port Moresby with his ex-partner.

    x.Following his father’s retrenchment, the family continued to reside in [Accommodation] until late 2015 to early 2016. His family then moved to a property in [Suburb 1], Port Moresby. His father moved to [Village] in around mid-2017.

    xi.His father passed away in May 2018 while living in [Village]. His mother passed away in Port Moresby in 2019.

    xii.His [sister], [Ms A], moved from Port Moresby to [Town 2] a few years ago for work-related reasons. His 2 [sisters], [Ms B and C], continue to reside in Port Moresby.

15. As outlined above, I have significant concerns with aspects of the applicant’s claims relating to an ongoing conflict with the [Tribe 2] clan and threats from persons in PNG due to money sent to [Mr E]. As detailed below, there are various inconsistencies, omissions, and implausible aspects in the applicant’s account. I acknowledge that not all such issues are significant and do not necessarily lead to an adverse credibility finding. In considering their significance, I have had regard to the overall consistency and coherence of the applicant’s account; the nature and extent of the issues; and any explanation provided by the applicant.

    Period of residence in [Village]

16. As outlined above, there are inconsistencies in the applicant’s evidence as to when he moved to [Village] after completing high school. Before the delegate, the applicant claimed that his father sent him to [Village] immediately after completing high school as he did not get accepted into [college]. While the applicant initially indicated to the delegate that he completed high school in [Year], this clearly cannot be correct as he would have been 5 years old at that time. Subsequently in the protection visa interview he amended the date to 2014. The applicant’s oral evidence to the Tribunal on this point appeared confused, although he agreed that he would have been aged between 18 and 20 when he completed high school, which equates to [Year] to [Year]. As noted above, I find that he completed high school between [Year] and [Year]. At the Tribunal hearing, he appeared to agree that he moved to [Village] in around 2014 or 2015 but was unable to provide clear details of what he did in the approximately [Number]-year period since finishing school.

17. The applicant’s [Social media] postings, together with his oral evidence to the Tribunal, indicate that he was located in Port Moresby in 2012 and from early-December 2014 onwards. There are no postings indicating that he was located in Port Moresby between 2013 and December 2014. He stated at the Tribunal hearing that he lived in [Village] for not more than one year and during that time did not return to Port Moresby. The written evidence to the Tribunal consistently refers to the ‘fight’ in [Village] occurring in 2014 or 2015.

18. I acknowledge that there has been a considerable lapse of time since these events and have considered the applicant’s explanation that he did not pay attention to dates before arriving in Australia and has difficulty recollecting, including due to some degree of substance abuse. I have also considered the Psychological Opinion which provides a provisional diagnosis of PTSD and expresses the view that this is likely to impact on the applicant’s concentration, memory, and recall.

19. Considering the above, I accept that the applicant moved from Port Moresby to [Village] in early 2014 for a period of less than one year.

    Conflict between the [Tribes 1 and 2] in 2014

20. The applicant claims that a ‘big fight’ took place between the [Tribes 1 and 2] tribes during his residence in [village] in 2014, triggered by disputes over land. He claims to have been stabbed but managed to escape, whereas his uncle [Mr G] was killed.

21. I have been unable to locate any country information that refers specifically to conflict between the [Tribes 1 and 2], including any reports of the claimed incident in 2014. There are reports, as referenced in the Country Information Submission, of an incident of inter-tribal violence between the [Tribes 1 and 3] in 2018 in the town of [District]. This led to the deaths of 3 members of the Ibusa tribe and the destruction of about 50 homes, forcing the Ibusa to take refuge in neighbouring villages.[6]

    [6] [News source, Title, Date]

22. However, I acknowledge more generally that country information indicates that inter-tribal violence is prevalent in PNG, particularly in the Highlands region. According to DFAT, 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.[7]

    [7] DFAT, Country Information Report Papua New Guinea, September 2022, p 12

23. I have given some weight to the overall consistency of the applicant’s claim that he was injured during an incident of inter-tribal violence. I have had regard to the photos submitted by the applicant as part of his protection visa application. While I am unable to verify whether these photos depict the destruction of [village] or the deceased body of the applicant’s uncle, I have given them some weight in assessing the credibility of the applicant’s claims. I have also considered the photo of a scar on the applicant’s [body part] which he claims arose from being stabbed during the fight. Despite some inconsistency regarding the location of the wound (initially claimed to be to his [body part], whereas the photo depicts a scar toward the front side of his [body part]), I accept that the photo provides some support for the applicant sustaining an injury to his [body part] which appears consistent with a stab wound. I have also had regard to the Psychological Opinion which refers to the applicant’s experience of a traumatic event during ‘the fighting’ in the context of his provisional PTSD diagnosis.   

24. Considering the above, I accept that in 2014 the applicant was injured during an outbreak of violence between the [Tribes 1 and 2] in or around [Village]. I accept that he escaped from the fighting and received treatment initially at [District] station and subsequently at [Town 1] hospital. I accept that the applicant’s uncle [Mr G] was killed during the fight. I find it plausible that the incident was triggered by disputes over land. However, as discussed below, I do not accept that this dispute related specifically to the applicant’s father’s land or that tribal violence between the [Tribes 1 and 2] has continued since the incident in 2014.

25. I accept that, after being discharged from [Town 1] hospital, the applicant returned to Port Moresby. Considering the applicant’s [Social media] postings, which show him at named places in Port Moresby as of early December 2014, I find that he had returned to Port Moresby by the beginning of December 2014.

    Residence in Port Moresby: December 2014 to February 2017

26. As outlined above, I have significant concerns regarding the applicant’s claim that following his return to Port Moresby he did not live with his family at [Accommodation]; he moved regularly and stayed with friends, essentially living in hiding from the [Tribe 2] due to a fear for his life. For the reasons below, I do not accept these claims to be credible.

27. His evidence to the Tribunal differs significantly from his evidence to the Department, at his protection visa interview and in his post-interview submission of 9 December 2019, that he returned to live with his family at [Accommodation]. It is also not consistent with his oral evidence to the Tribunal: when asked about his father’s employment, the applicant stated that he and his family continued living at [Accommodation] until late 2015 or early 2016.

28. I have considered the applicant’s response to these inconsistencies in the post-hearing submission from his representative. The applicant claims to be unsure of why he provided inconsistent evidence at his protection visa interview but has raised the proximity of the interview to the events in question. I do not find this explanation to be convincing and consider that the greater proximity to the relevant events to reasonably result in less inconsistency. From my listening to the audio recording of the protection visa interview, there was no indication that the applicant was experiencing any difficulties when responding to the delegate’s questions about where he resided during the relevant period. Further, he submitted a written statement following the interview in which he reiterated that he resided at [Accommodation] following his return to Port Moresby, claiming that this was the only safe place for him in PNG.

1. The applicant’s representative submits that the Psychological Opinion may explain these inconsistencies. I accept that the applicant has a provisional PTSD diagnosis and that the psychologist considers it likely that when recalling a traumatic memory, such as being stabbed during ‘the fighting’, he would experience some impairment of his cognitive abilities (concentration, memory, and recall) and this is likely to be exacerbated during a hearing where he is questioned by professionals. I accept that this may reasonably explain any inconsistencies in evidence regarding the incident in which the applicant was stabbed in 2014. However, I do not find it to reasonably explain inconsistencies of this degree regarding his place of residence in Port Moresby.

2. Based on the available evidence, I do not accept that the applicant experienced any traumatic incidents during this period which would result in difficulties in his ability to recollect basic information such as where he resided and with whom. Further, as noted above, his evidence to the Department from which these inconsistencies arise is not limited to the protection visa interview. The applicant was given an opportunity following the interview to submit a written statement, in which he reiterated his place of residence as [Accommodation].

3. The submission and Psychological Opinion raise the applicant’s English language skills as potentially being relevant to these inconsistencies. While I acknowledge that English is not his first language, the applicant elected to provide evidence at his protection visa interview without assistance from an interpreter and during the Tribunal hearing stated that he was able and preferred to provide evidence without using the available interpreter. There was no indication that the applicant was experiencing any significant difficulty in expressing himself in English or understanding my questions. I am not satisfied that any limitations in the applicant’s English language skills reasonably explains inconsistencies of this nature.      

4. The applicant’s social media postings between December 2014 and November 2016 do not reflect a person living in hiding and in constant fear for his life. These show him at various named public places in Port Moresby, namely eating at a café at ‘[Location 1, Suburb 2]’ (posted 4 December 2014); drinking with several others ‘near [Suburb 3]’ with the caption ‘Enjoying with my Big Sista’ (posted 25 December 2014); shopping at ‘[Location 2]’ (posted 14 March 2015); shopping at ‘[Suburb 4]’ (5 December 2015); and shopping at ‘[Location 3], Port Moresby’ (posted November 2016). There are several other posts during this period which show the applicant in public places and socialising with others.

5. I have considered the applicant’s responses to this information, including at the Tribunal hearing and in the pre-hearing and post-hearing submissions from his representative. The applicant claims to have been unaware of the potential risks of his social media postings until the protection visa interview. It is further submitted that his frequent mobility may have mitigated the risk of him being located by the [Tribe 2]. I do not accept as credible that a person in genuine fear for their life and living ‘in hiding’ would be unaware of the risk of posting material to their [Social media] account of the nature and frequency posted by the applicant. I also do not consider it credible that a person in genuine fear for their life and living ‘in hiding’ would feel comfortable to openly engage in social activities as depicted in the applicant’s social media postings.  

6. I also find the applicant’s ability to meet his ex-partner during this period and maintain a relationship for around one year to not be reflective of a person living in hiding and in constant fear for their life. He stated to the Tribunal that he met his ex-partner at a social gathering in 2015 or 2016 and they were in a relationship until late 2016. This is consistent with several postings on the applicant’s [Social media] account in March 2016 which show the applicant embracing his ex-partner, one which appears to be taken outdoors with the caption ‘Walking on sunshine’. Similarly, I find the applicant’s ability to undertake employment during this period to not be consistent with his claim to be living in hiding and in constant fear for his life. I find the explanation in his First Statutory Declaration, that he only took jobs that did not require him to ‘move around extensively’, to be inconsistent with his claims that he had to keep moving to avoid harm.

7. At his Tribunal hearing the applicant agreed that both he and his father were at risk of harm from the [Tribe 2] in Port Moresby because of their claims over the land in [Village]. He claimed this is why it was not safe for him to live with his family. He confirmed that his father was not harmed at any time while he lived in Port Moresby. The applicant did not suggest that his father was in hiding; simply that he ‘watched his movements’. Given that the applicant had not inherited his father’s land at that time, it is unclear why the [Tribe 2] would be targeting the applicant to a degree that he felt compelled to live in hiding, while the applicant’s father was able to live openly in Port Moresby, without being harmed. 

8. I find the applicant’s evidence to the Tribunal regarding his attempts to move to other areas of PNG during this period to be inconsistent. In his First Statutory Declaration he stated that he could not move to Lae or Madang because these places are a short drive from [Village]. At his Tribunal hearing, he provided inconsistent evidence as to whether he moved to Lae during this period (initially stating that he did and then stating that he did not). He stated that he did move to Madang for around one week. In his protection visa application, he stated that he never moved to any other part of PNG, because moving would place him at greater risk. Further, when asked at the hearing about what was happening in Port Moresby to cause him to feel he had to move to another place, he was unable to provide any reason, other than reiterating that he feared harm from the [Tribe 2].

9. Considering the above, I do not accept that, following his return to Port Moresby in December 2014, the applicant lived apart from his family due to a fear of harm from the [Tribe 2]; that he lived in hiding from the [Tribe 2] tribe or anyone else; or that he moved regularly due to a fear for his life. Based on the available evidence, I do not accept that the applicant or his father were being targeted by the [Tribe 2] during this period. I accept the applicant’s oral evidence to the Tribunal that from late 2015/early 2016, after his family moved from [Accommodation] to [Suburb 1], he lived separately. However, I do not accept that this was due to any fear of harm from the [Tribe 2].

10. I acknowledge country information that inter-tribal conflicts often affect transmigrated populations in other parts of the country and members of ethnic groups may continue their conflicts in other locations. DFAT reports that individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present.[8] However, I have not accepted that the applicant or his father were being targeted by the [Tribe 2] in Port Moresby between December 2014 and February 2017. I find that the applicant lived openly during this period, including with his family at [Accommodation]; engaged in regular social outings and employment; and posted regularly to his [Social media] account as outlined above. According to his evidence to the Tribunal, neither he or his father were subjected to any harm, or threats of harm, from the [Tribe 2] during this period. If they were genuinely being targeted due to a land dispute, I consider that the [Tribe 2] would have easily been able to locate them. This leads me to conclude that the incident in 2014 in [Village] did not relate to a land dispute specifically involving the applicant’s father’s land. 

    Father’s death

    [8] DFAT, Country Information Report Papua New Guinea, September 2022, p 12

11. The applicant first raised the claim that his father was murdered by the [Tribe 2] at the Tribunal hearing. As discussed with the applicant, the late disclosure of this claim is concerning given its relevance to his protection claims. In accordance with s 423A of the Act, I have considered whether the applicant has provided a reasonable explanation for not raising this claim with the Department. When asked at the Tribunal hearing why he did not previously raise this information, he stated that he did not want to talk about it and tries to forget the traumatic things that have occurred in PNG, such as his cousin’s murder. In his Second Statutory Declaration, he stated that he finds it extremely difficult to speak of his father’s death as it causes him pain, sadness, and anxiety.

12. Based on the available information, I am satisfied that the applicant does not have a reasonable explanation for the late disclosure of the claim that his father was murdered by the [Tribe 2]. In accordance with s 423A, I have drawn an inference unfavourable to the credibility of this claim. I accept that the applicant feels sadness regarding his father’s death. However, I do not accept that he failed to raise the claim that his father was murdered by the [Tribe 2] in the context of his application for a protection visa because he did not want to talk about it or finds it difficult to speak of. He discussed his father’s death at his protection visa interview and in his First Statutory Declaration, with no mention that he had been murdered. At the Tribunal hearing he did not appear to experience any difficulty in stating that his father had been murdered. Given the significance of this information to his protection claims, I do not accept that he would not raise it with the Department, including when specifically discussing his father’s death during the protection via interview, due to any difficulty in discussing it.

13. I have also considered the overall credibility of this claim and, for the below reasons, do not accept it to be credible. The applicant claims that his father returned to [Village] in around mid-2017 to try to settle the land dispute. I have found that the outbreak of violence in 2014 in [Village] did not relate specifically to a land dispute involving the applicant’s father’s land and that neither the applicant or his father was being targeted by the [Tribe 2] in Port Moresby between December 2014 and February 2017 due to a land dispute. Below I find that tribal violence between the [Tribes 1 and 2] did not continue since the incident in 2014. In these circumstances, I do not accept that his father would be targeted by the [Tribe 2] following his return to [Village]. I find the applicant’s father’s death in May 2018 to be due to natural causes; not murder.

    Ongoing tribal violence

14. The applicant claims that tribal conflict or ‘warfare’ between the [Tribes 1 and 2] tribes has been ongoing for a significant period and continues to the present. The applicant has provided inconsistent evidence regarding the period of conflict between the 2 tribes. In his protection visa application, he refers to ‘the fight’ being ongoing for more than 5 years (that is, since 2012); at his protection visa interview he stated that the fighting began in 2000 and in his Second Statutory Declaration he claims that there has been ongoing tribal warfare between the tribes since the mid-1980’s.

15. As noted above, I have been unable to locate any country information that refers specifically to conflict between the [Tribes 1 and 3], nor has any been provided by the applicant. While I accept that not all such incidents are reported, I have some concerns about the absence of any country information in circumstances where the applicant claims the conflict has existed since the mid-1980’s until the present, with frequent outbreaks of violence, and resulted in him and his father being ‘hunted down’ in Port Moresby for several years and his father and cousin being murdered. As referenced in the Country Information Submission, there are reports of other inter-tribal conflicts in the Highlands region, including in Enga, Hela, and Southern Highlands Provinces and in [District].[9]

    [9] Country information as referenced in the representative’s Country of Origin information submission for PNG dated 22 December 2023 under the sub-heading ‘Tribal violence’

16. Further, I consider my findings above regarding the credibility of the applicant’s claims that the 2014 incident was related to a dispute over his father’s land; that he and his father were targeted by the [Tribe 2] in Port Moresby; and that his father was murdered by the [Tribe 2] to generally undermine the credibility of the claim that the conflict has continued since the incident in 2014. I consider that the applicant has fabricated or embellished several key aspects of his account to strengthen his protection claims.

17. I have considered the letter from [Mr O] dated 26 January 2024 which claims that there is currently a conflict between the [Tribes 1 and 2] in the [District] area and confirms the threats to the applicant’s life. However, I am not satisfied that this evidence sufficiently addresses or outweighs my overall credibility concerns regarding these claims.

18. Based on the available evidence, I do not accept the applicant’s claim that tribal violence between the [Tribes 1 and 2] has continued since the incident in 2014.

    Cousin’s murder in [Town 2]

19. The applicant claims that his cousin was murdered in [Town 2] [in] January 2018, and this was a result of the ongoing tribal conflict between the [Tribes 1 and 2] tribes. I have viewed the photographic evidence submitted following the hearing in support of this claim. As cautioned by the applicant’s representative, I acknowledge that the content of the photos is disturbing and confronting. While I am unable to verify the identity of the deceased person in the photos, I am prepared to accept that it is the applicant’s cousin and that he was murdered.

100.   However, considering my finding above that tribal violence between the [Tribes 1 and 2] has not continued since the incident in 2014, I do not accept that his cousin’s murder was connected to any ongoing tribal conflict between the [Tribes 1 and 2] tribes. There is no information before me to support the claim that the applicant’s cousin’s death in [Town 2] was connected to the 2014 conflict between the [Tribes 1 and 2] in [Village]. As discussed above, DFAT reports that inter-tribal violence 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.[10] I find that there are other plausible explanations for the applicant’s cousin’s murder in [Town 2].

[10] DFAT, Country Information Report Papua New Guinea, September 2022, p 12

Threats from persons who paid money to [Mr E]

101.   I accept that the applicant travelled to Australia in February 2017 on a visitor visa, for the stated purpose of attending [Mr E]’s wedding, and that he applied for the visa with assistance from [Mr E]. For the reasons below, I do not accept any of the related claims about receiving threats from people who paid money to [Mr E] to be credible. 

102.   There are significant inconsistencies between the applicant’s oral evidence to the Tribunal and his previous evidence regarding the nature of his relationship with [Mr E], including evidence provided to the delegate and evidence in his First Statutory Declaration. Prior to the Tribunal hearing, the applicant claimed that he was part of a group of 30 people that were meant to travel to Australia to attend the wedding of a friend, [Mr E]. In his First Statutory Declaration, he referred to [Mr E] as a ‘good friend’. At the Tribunal hearing, the applicant claimed that he had never met [Mr E] before he arrived in Australia; he came into contact with [Mr E] after responding to his post on [Social media] for people to come to Australia to [do job task 2]. No explanation has been provided by the applicant for these inconsistencies, including when they were raised by the Tribunal at the hearing as being of concern. I find the inconsistencies regarding the nature of his relationship with [Mr E] to undermine the overall credibility of the related claims of threats from persons who paid money to [Mr E].

103.   There are also significant inconsistencies regarding the nature of the applicant’s relationship with some of the people he claims paid money to [Mr E], and from whom he has received threats. In his oral evidence to the Tribunal, he claimed to have never met any of the other 29 members of the group, prior to meeting them in Port Moresby shortly before the intended departure date. This included [Mr J] and his brother, [Mr L]. I find this to be inconsistent with the applicant’s initial evidence to the Tribunal in which he agreed that [Mr J] was a friend of his in PNG. I also find it inconsistent with the posting on the applicant’s [Social media] account in December 2015 which names [Mr J]. I have considered the applicant’s responses to this information at the Tribunal hearing and in the post-hearing submission. I accept that [Mr J] is not depicted in the photo; rather it is his brother [Mr L]; and that [Mr J’s] name appears because the applicant ‘tagged’ him in the post. However, this is inconsistent with his oral evidence to the Tribunal that he had never met any of the other 29 members of the group. According to the applicant, he was socialising with [Mr L] (who was part of the group) as of December 2015 and he states in the post-hearing submission that he was familiar with [Mr L].

104.   Further, I do not consider it plausible that the applicant did not know [Mr J], in the sense of being friends with him, as of December 2015. I am not convinced that the applicant would ‘tag’ someone with the caption ‘And we are still drinking, yep… - with [Mr J]’ if he was not ‘familiar with’ them. I find the inconsistencies regarding the nature of his relationship with [Mr J] and [Mr L] to undermine the overall credibility of the related claims of threats from persons who paid money to [Mr E].

105.   The applicant has not provided any documentary evidence to support his claims to have received multiple threats via WhatsApp and [Social media]. He claims that he is unable to provide evidence from his WhatsApp account because he changed his SIM card in 2018. I note that the applicant lodged his protection visa application in June 2017, at which time he claims to have already received threats via WhatsApp. I have some concerns as to why, if he genuinely feared harm due to these threats, he did not take steps to ensure that he had a copy of them to provide to the Department in support of his protection claims. He has provided no explanation for why he is unable to provide evidence of the threats received via his [Social media] account, which he confirmed to the Tribunal that he continues to use. 

106.   Considering the above, I do not accept that the applicant has received any threats from persons in PNG who paid money to [Mr E] in connection with obtaining a visitor visa to travel to Australia in 2017.

Assessment

107.   Based on the above findings of fact, I have considered whether the applicant faces a real chance of harm if he were to return to PNG. In terms of the area to which the applicant is likely to return, based on the applicant’s circumstances and evidence, I consider that he is most likely to return to Port Moresby. This is the place that he lived for the vast majority of his time in PNG, including in the years prior to his departure to Australia, and 2 of his sisters continue to reside in Port Moresby. However, given that his family originate from [Village] in [District] and he has inherited land in this area following his father’s death, I accept that [Village] may also be considered as an area to which the applicant is likely to return. I have therefore considered the chance of harm in both Port Moresby and [District].

108.   I have found above that the incident in 2014 in [Village] was not triggered by a dispute relating to the applicant’s father’s land; the conflict between the 2 tribes did not continue following the incident in 2014; the applicant and his father were not being targeted by the [Tribe 2] and did not experience any harm in Port Moresby following the incident in 2014; the applicant’s father was not murdered by the [Tribe 2] in May 2018; and the applicant’s cousin’s murder in [Town 2] in January 2018 was not related to any ongoing conflict with the [Tribe 2]. I accept that tribal violence is prevalent in the Highlands region and that the applicant did experience an incident of tribal violence in 2014. However, I find that neither the applicant or his father have been subjected to any harm or threats of harm since that time from the [Tribe 2] tribe. There is no credible information before me to indicate that there would be a real chance of the applicant being subjected to serious harm from the [Tribe 2] in the reasonably foreseeable future. Considering the applicant’s accepted circumstances, I find that there is not a real chance that he will be subjected to harm in the reasonably foreseeable future by members of the [Tribe 2] if he were to return to [District] or to Port Moresby. The applicant has not claimed to fear harm from any other tribe in PNG and I am satisfied that no such claim arises on the facts.

109.   As I have not accepted that the applicant received any threats from persons in PNG who paid money to [Mr E] in connection with obtaining a visitor visa to travel to Australia, I find that there is not a real chance that he will be harmed for this reason in the reasonably foreseeable future if he were to return to [District] or to Port Moresby.

110.   The applicant has not claimed to fear harm for any other reason if he returns to PNG and I find that no protection claims arise on the accepted facts. I find that the applicant does not have a well-founded fear of persecution and is therefore not a refugee.

111.   I have therefore considered the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to PNG, he will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

112.   I note that the ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[11] For the same reasons outlined above, I find there to be no real risk of the applicant suffering significant harm from members of the [Tribe 2] tribe or from persons in PNG who paid money to [Mr E] if he returns to either Port Moresby or [District]. I find that no other claims arise on the accepted facts that would give rise to complementary protection obligations.

[11] MIAC v SZQRB (2013) 210 FCR 505

Conclusion

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

114.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Mia Bailey
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.

…