2314472 (Refugee)

2314472 (Refugee) [2024] AATA 1138 (2 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ehsan Azadi (MARN: 1279450)
CASE NUMBER:  2314472
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:2 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 January 2024 at 11:46am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – member of family or tribe targeted by tribal violence – original claims of economic hardship – ceasefire agreement – family relocated to another province – not been the subject of any violence or other harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZAT v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Papua New Guinea (PNG), applied for the visa on 8 August 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 14 September. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 19 December 2023 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
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’, and circumstances in which a person will be taken not to have such a fear, are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the 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
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to PNG, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application submitted on 8 August 2023 and the annexed copy of the applicant’s PNG passport’s bio data page;
·The applicant’s application for review of 14 September 2023 and the annexed decision record of 8 September 2023;
·The administrative and movement records of the Department relating to the applicant;
·An email of 11 December 2023 from the applicant’s representative, Arc Migration, addressed to the Tribunal, in which they state that:
We represent [the applicant] in his application for a review of the decision made by the Department of Home Affairs to refuse [the applicant]’s application for a protection visa. We have just been appointed to represent the review applicant. [The applicant] provided is with the AAT invitation for an interview for the 19^th of December 2023. We received information from the review applicant that the person who assisted him with his application to the Department of Home Affairs did not include his claims for protection as per instruction and his application file was missing the critical information as well as his evidence.
In the interest of justice for [the applicant], we humbly request the AAT postpones the upcoming hearing and grant us 6 to 8 weeks’ time. That would allow us to receive full instruction and information from the review applicant and send our submissions to the AAT.
·A copy of the Tribunal’s reply to the applicant’s 11 December 2023 request for a hearing postponement, in which the Tribunal responded in part that:
The Presiding Senior Member in [the applicant]’s matter before the Tribunal has considered your email, but has no granted a hearing postponement as requested, noting the significant workload of the Tribunal and its inability to provide a new hearing date on the basis of the reasons for your request. The hearing will therefore continue to be conducted as originally listed, namely on Tuesday 19 December 2023 at 9:30am at the Brisbane Registry.
The presiding Senior Member requests that you note the relevant paragraphs of the Migration and Refugee Divisions Practice Direction (as attached) in relation to preparing for a hearing. Namely paragraph 7.5 and 7.6, extracted below: …
The review applicant’s claims for protection, and the critical information you refer to in your email. Should be clarified in written submissions in accordance with the practice Direction as above, and provided to the Tribunal prior to the listed hearing. The submission should be accompanied by a signed declaration from the review applicant that the submission has been read and explained to them by you, and that it accurately and completely presents their claims…
·A letter to the Tribunal under the hand of the applicant’s representative, Mr Ehsan Azadi of Arc Visa and Migration, dated 15 December 2023 in which he states in part that:
The applicant previously applied for a protection visa SC866 through an immigration agent who did not correctly advise the review applicant on the protection visa framework, and the statement that was presented to the department did not reflect his real fears of being harmed if he had to return to his country. We have recently been appointed to this case, and in consultation with him have prepared a new statement of claims addressing the causes for his fear for his life if he was to return to PNG…
·The applicant’s Statutory Declaration of 15 December 2023 and the annexed media reports as to Tribal violence in the Enga Province of PNG, and a copy of the purported photograph of the applicant’s house being burnt. In his declaration, the applicant states at paragraphs 3 to 13 that:
I travelled to Australia in December 2022 on a 9-month SC403 visa to work in the farms in Australia. My purpose of travel to Australia was to work here and send money to my family for our future. I am the oldest child in the family and wanted to assist my father to grow his business and help with their life.
The ENGA province has many tribes and, in the past, there has been some fighting between the tribes. But in the recent years there was some peace and we all got used to it. However, in July 2023 one of the tribal men of our neighbouring tribe was killed by our tribal members and that caused the start of the fight between the local tribes. All these tribes live in close proximity of each other, and they may work together as allies or be against as enemies.
This conflict occurred between my tribe Kaekin, and its ally namely, Sikin Tribe against its enemy tribe namely the Ambulin tribe with its allies, Itokon, Lungupin and Sau. The tribal fighting involved the use of high-powered guns (refiles), bush knives and axes by either party. The fights are usually very violent and cause many death and serious injuries.
The fighting got intensified when my tribe and its ally (Sikin) killed seven people from the enemy tribes. This killing made the fighting worse, and both sides ramped up their attacks against each other’s men, women and children. They killed, raped, burnt houses, and demolished farms.
- [11905406] Submissions + stat dec + news articles
Among the properties being lost was my family house and my father’s shop. They were burnt and destroyed. I saw the pictures of burning houses of my village on social media. I saw my father’s shop being looted by the attackers. They were celebrating by taking the [products] first, and then burning down the shop. It was devastating for me seeing what was happening to my own family.
Many in my tribe fled to faraway places fearing for their lives. My family, my parents and siblings including my children had to leave too as it was very dangerous for them to stay in their house. My maternal cousin [Cousin 1] Stayed back to defend our house. He was with a few other men of our tribe. When the attackers from the enemy tribes arrived, they fought them off but at the end they lost. My cousin [Cousin 1] and a few of the men were killed. (My mother recently sent me some photos and one photo is showing my cousin’s bloody body on the ground.) Our family house was also burned down.
The fighting continues in the district and in our area. All the houses neighbouring our house are also destroyed or burnt and many people have been killed and other have fled. After fleeing the area, and after some time of hiding in different places, my family have reached a place called [Town 1] in Morobe province and are hiding in a friend’s house.
The tribal fight has not settled, and it has spread to the larger cities and enemy tribes are looking for those who have fled to take revenge. Revenge makes them proud and happy. I am very concerned for my parents and siblings. They are living in hiding in [Town 1]. They have no freedom and cannot work and earn for their necessities. They are living in anxiety not knowing what their future will be like.
I am fearful to return to PNG because my life will be in danger. Not only I belong to Kaekin tribe but also the enemy tribes have spread the rumour that my father and I were and are in the business of buying and supplying guns and ammunitions to arm our tribe and its allies. This is completely false but because my father was a businessman and I had travelled to Australia this rumour was spread. This has made me and my father a more wanted target compared to the other tribal members.
The Ambulin, Sau, Itokon and Lungupin invaded and destroyed almost everything along the highway in Kaekin Tribal area and most of my local tribesman were wiped out of fled to save their life, and properties were burnt down into ashes. A great number of people in my village had to flee and were displaced. The fight was and still is very violent with many killed and injured on both sides.
Among the properties being lost was my family house and my father’s shop. They were burnt and destroyed. I saw the pictures of burning houses of my village on social media. I saw my father’s shop being looted by the attackers. They were celebrating by taking the [products] first, and then burning down the shop. It was devastating for me seeing what was happening to my own family.
Many in my tribe fled to faraway places fearing for their lives. My family, my parents and siblings including my children had to leave too as it was very dangerous for them to stay in their house. My maternal cousin [Cousin 1] Stayed back to defend our house. He was with a few other men of our tribe. When the attackers from the enemy tribes arrived, they fought them off but at the end they lost. My cousin [Cousin 1] and a few of the men were killed. (My mother recently sent me some photos and one photo is showing my cousin’s bloody body on the ground.) Our family house was also burned down.
The fighting continues in the district and in our area. All the houses neighbouring our house are also destroyed or burnt and many people have been killed and other have fled. After fleeing the area, and after some time of hiding in different places, my family have reached a place called [Town 1] in Morobe province and are hiding in a friend’s house.
The tribal fight has not settled, and it has spread to the larger cities and enemy tribes are looking for those who have fled to take revenge. Revenge makes them proud and happy. I am very concerned for my parents and siblings. They are living in hiding in [Town 1]. They have no freedom and cannot work and earn for their necessities. They are living in anxiety not knowing what their future will be like.
I am fearful to return to PNG because my life will be in danger. Not only I belong to Kaekin tribe but also the enemy tribes have spread the rumour that my father and I were and are in the business of buying and supplying guns and ammunitions to arm our tribe and its allies. This is completely false but because my father was a businessman and I had travelled to Australia this rumour was spread. This has made me and my father a more wanted target compared to the other tribal members.
My life will be in danger if I return to stay in the large cities or other locations. The tribal fight is not confined to the fighting zone, but both conflicting sides have brought the fight in to the big cities like Port Moresby, Lae and around the country. My country is unsafe for me to go and live peacefully as the fighting is still on going, and our enemies are searching to kill people like me. Neither I cannot live in hiding, as like all others, I need to work and socialise with others. I will need my personal freedom to work, socialise and live without fear or being threatened by other persons, or be discriminated against. I humbly ask for your compassion.
·The applicant’s additional Statutory Declaration, incorrectly dated 15 December 2023 and amended during the hearing to reflect that the declaration was made on 19 December 2023, in which he states in part that:
Details of the person who assisted me with my protection visa application are: [Mr A], phone number [deleted]. I understand he is in NSW.
I received [Mr A]'s contact details from another PNG friend who received his visa assisted by [Mr A].
I believed I was dealing with a migration agent. I was not aware of the differences between a migration agant a non migration agent. This was the first time I was applying for a visa inside Australia and I thought that this was the way it should be.
I never met with [Mr A]. I talked to him a few times on the phone prior to him lodging a protection visa application for me. I talked with him on the phone or on Whatsapp.
First time I contacted him on the 8th of August according to my call log. Next time on the 9th of Sept and then 30th of Sept, and some text messaging after my refusal decision.
I told him on the phone that I wanted to apply for protection visa because of the war in PNG and he told me that he can prepare the application. He told me he knew what the process was and could do the application. He didn't ask for much details such as my family members, or life history.
[Mr A] did not ask me any more questions about why I did not want or could not go back to PNG. He asked for a payment of $350 for his work, which I paid.
[Mr A] lodged my application and I received the acknowledgement letter and the bridging visa.
I didn't know what he had claimed on my application until I received the refusal letter. Only then I came to realise that I had not received the proper advice about that application. [Mr A] told me that he could fix the application (after being refused) by adding the tribal fighting into the file. I had asked him in many occasions whether he needed more information from me but he never asked for. He charged me $150 for that.
[Mr A] told me that I had to apply for the AAT review which I did with his assistance. I paid about $80 to [Mr A]. I received invitation for interview very soon after. At that time I tried to contact [Mr A] but he did not answer my calls. I believe he was and still is avoiding me.
I went to Arc Visa and Migration on the 8th December 2023 and asked for assistance with the AAT case. The refugee framework was explained to me and I understood that I had to draft my statement of claimes based on my tribal threats to my life and freedom.
I appointed Arc Visa and Migration to be my representative on the 8 of December. I requested them to correct my case and help me with this process.
In the last 3 days since the request from the AAT I have tried many times to contact [Mr A] by phone, Whatsapp and text, but he has not responded me at all. Unfortunately, I cannot provide a Statutory Declaration from [Mr A] at this time.
·Post-hearing submissions of the applicant’s representative dated 19 December 2023, and three annexed media reports, as below:
o‘Wapenamanda and Wabag declared fighting zones’, PNG Post, 22 November 2023, in which it was reported that; the Provincial Administrator Sandis Tsaka had stated in a circular that there would be a one month lock down with security checks and curfew from 10pm to 6 am with travel restrictions and a Fighting Zone declaration made in relation to the Wapenamanda and Wabag districts.[1]
[1] New Guinea – Fighting’, RNZ Pacific (International/ Pacific News), 22 November 2023, in which it is reported that; “Wapenamandaand Wabag districts in Enga province in Papua New Guinea have been declared fighting zones amid continuing fighting. The Post Courier reports the Provincial Peace and Good Order Committee has imposed a one-month lockdown to contain tribal conflicts and the law and order situation in both districts."[2]
o‘Soldiers caught with live ammunition, fire crackers’, Dorothy Mark, PNG Post Courier, 13 December 2023, in which it was reported that; “Acting Supt Baim said, the three out of the eight soldiers admitted that those items confiscated were theirs and they smuggled and tried to smuggle them up to the Highlands provinces respectively.”[3]
With reference to the media articles listed above, the applicant’s representative submitted to the Tribunal that:
The first two are on declaration of the fighting zone (which includes the area in discussions) to impose restrictions on movements. Both articles give the impression that the situation is unsettled or very fragile. Both articles post date the article on the ending of the conflict dated 18 September 2023 (referred to by the Tribunal during the hearing and outlined at paragraph 25 below).
The third article is about a few soldiers smuggling ammunitions (and noted by the Tribunal also fireworks) to the highlands which is indicating the frailness of the situation even if there is or was a ceasefire in place.
[2] for protection

In his protection visa application, the applicant stated that his country (PNG) is a very poor with very few jobs and low wages. He further stated that he can work in Australia for a comparatively high pay and remit money to his family in PNG. His claims (as summarised below) are that:
·He is unable to secure employment nor receive wages sufficient to cover his living expenses if he was to return to PNG;
·He is unable to seek help because everybody in PNG is poor and faces the same problems;
·The authorities do not have the funds to help him and other people in PNG; and
·He is unable to relocate within PNG as all areas of the country are in the same situation.
New Claims
The applicant, in his declaration of 15 December 2023, outlined his claims for protection (as summarised below) as being that:
·The Enga province has many tribes and, in the past, there has been some fighting between the tribes. While there has been some peace in recent years, in July 2023 one of the tribal men of the applicant’s neighbouring tribe was killed by his tribal members and that caused the start of the fight between local tribes. All these tribes live in close proximity of each other, and they may work together as allies or be against as enemies;
·This conflict occurred between the applicant’s tribe, the Kaekin and its ally the Sikin tribe against its enemy tribe, the Ambulin tribe and its allies, the Itokon, Lungupin and the Sau tribes;
·The fighting intensified when the applicant’s tribe and the Sikin killed seven people from the enemy tribes, with both sides then ramping up their attacks on each other, killing, raping, burning houses and demolishing farms;
·His family house was burnt down, his father’s shop looted by attackers and his cousin [Cousin 1], who had stayed back to defend the house was killed with a few other members of their tribe by the attackers;
·His family fled and after hiding in some places have relocated to [Town 1] in the Morobe Province of PNG where they are hiding in a friend’s house;
·He fears returning to PNG because his life will be in danger, not only because he belongs to the Kaekin tribe but because the enemy tribes have spread a rumour that he and his father were and are in the business of buying and supplying guns and ammunition to our tribal and its allies;
·He claims his life will be in danger if he returns to anywhere in PNG as the tribal fight is not confined to the fighting zone as both sides have brought the fight to the big cities like Port Moresby, Lae and around the country; and
·He claims that his country is unsafe for him to return to as he cannot live peacefully because the fighting is still on going and his enemies are searching to kill people like him.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 8 September 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims, that he will not be able to obtain good paying employment upon his return to PNG due to economic reasons, did not relate to any of the reasons in s 5(J)(1)(a) of the Act, and there was no other information before the delegate to suggest that the applicant would be the subject of harm upon his return to PNG for one of those reasons. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that the economic hardship the applicant claims they would face amounts to ‘significant harm’. Therefore, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 20 November 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 19 December 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Country information
The Tribunal has taken into account the DFAT Country Information Report Papua New Guinea (6 September 2022), as relevant, including the information under the heading of ‘Economic Overview’ at 2.7 to 2.10, where it is reported that:
PNG is classified by the World Bank as a lower middle-income country and classified by the Asian Development Bank as a conflict-affected, fragile state, meaning that economic development is challenging and state capacity is limited. The country’s economy remains dominated by two broad sectors: the agricultural, forestry, and fishing sector that engages most of PNG’s labour force (the majority informally); and the minerals and energy extraction sector that accounts for most export earnings and GDP. According to the World Bank, in 2020, PNG’s GDP per capita was USD2,757, lower than its level in 2014. (By comparison, Australia’s GDP per capita in 2020 was USD51,692). PNG ranked 155^th out of 189 countries, according to the UN’s 2020 Human Development Index.
PNG is a poor country. The majority of the roughly 80 per cent of Papua New Guineans who live in traditional rural communities make their living from subsistence gardens and small-scale cash cropping. According to a measure of poverty used by the World Bank, 85 per cent of the people of PNG are considered poor, due to their lack of disposable income, low level of educational attainment and low level of access to electricity. Only about 15 per cent of PNG residents have reliable access to electricity, among the lowest level in the world.
PNG’s population is very young. Around 35 per cent of the population is aged under 15 years and the median age is 22. However, most young people have limited access to education or skills training, and very limited job prospects. According to an ANU economist, PNG has been losing jobs since 2013, the year in which PNG LNG [the country’s first and largest liquefied natural gas extraction and export project] construction was completed. Furthermore, women’s substantially poorer access to health care services, lower levels of educational attainment and literacy, and cultural norms around violence and women’s roles pose significant barriers to their equal participation in economic activities.
PNG has no formal welfare system. The ‘wantok’ system, through kinship ties and social bonds, provides an informal and limited social protection mechanism during times of hardship but this system is weakening due to demographic changes (i.e. the rapidly growing population) and urbanisation. COVID−19 pushed many families back, or deeper, into poverty.
Under the heading of ‘Inter-Group Violence’ at 2.27 to 2.32, it is reported at 2.27 to 2.28 and 2.31 to 2.32 that:
Tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.
Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced.
Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there.
DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG.
Under the heading of ‘Police’ at 5.3 to 5.6, it is reported at 5.3 and 5.6 that:
The Royal Papua New Guinea Constabulary (RPNGC) is the national police force responsible for the investigation of crime and maintaining internal security in all regions of the country. At the time of independence in 1975, police services were estimated to only cover around 10 per cent of the country’s total land area and 40 per cent of the population. Since then, the size of the RPNGC has increased by only 30 per cent, while the overall population has more than quadrupled. In 2022, the strength of the RPNGC is approximately 5,500 personnel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC.
DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.
The Australian Institute of International Affairs, in their 14 March 2022 article titled ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’, reported in part that:
Tribal fighting remains ubiquitous in the Highland communities of PNG. As the pattern of violence worsens, the role of groups like the ICRC only becomes more essential.
Tribal fights are brutal. The aim is simple – to destroy the enemy, mentally and physically. Fights generally take place in or around remote villages without access to medical assistance or law enforcement. By taking over the enemy’s land, the occupying party is better positioned during future peace and compensation negotiations. Unfortunately, the civilians who do not participate in the fights are the ones who bear the brunt of the violence. Many are wounded or killed during these intense battles. The Highlands’ limited access to healthcare only adds to the anguish. Regrettably, at times sexual violence occurs during these fights. On top of immediate needs, the impact of violence remains even after the fighting has stopped — fleeing villagers are often displaced for months or even years…
The changing nature of tribal violence
Fights in the Highlands are unpredictable. Battles are short and intense but reaching a ceasefire or peace agreement can take months or years — many fights remain “frozen” with no active fighting for long stretches. Without a peace agreement in place the fight may resume at any moment. For this reason, the ICRC and the PNG Red Cross build and maintain connections with local Highland communities, enabling us to undertake neutral humanitarian action when needed.
Traditional limit in fights
Just like the Geneva Conventions, Highland communities have their own rules about what is permitted during a fight. The most consistent rule is the concept of neutrality — participants should not attack neutral people, places, buildings, or objects.
From a traditional perspective, there is broad agreement that killing ‘innocent’ people would lead to death or defeat in battle, either by incurring a generation of bad luck or becoming a target of the deceased’s spirit. Unfortunately, like in many situations of violence, in the heat of the fight these tacit rules are not always strictly followed, and communities have limited means of enforcing them.
A rule of similar importance is the principle that fighting can only take place on the lands of the clans involved in the fight. The ICRC has observed neutral clans marking their boundaries to prevent becoming involved. Rules and traditions of tribal fighting are primarily passed from father to son, or at clan meetings. However, many older community members feel that younger generations no longer respect these teachings.
Women are generally excluded from the tribe’s combat decisions. While this is not always the case, they are often expected to take small children and key possessions to the safety of relatives, or to hide until the fight is over.[4]
[4] ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’, Andrew Kobylinski, Australian Institute of International Affairs, 14 March 2022.
In their 18 September 2023 article entitled ‘Fighting tribes agree to ceasefire’, the Papua New Guinea Post Courier reported that:
A devasting tribal warfare that claimed more than 200 deaths and attracted international media attention in the Wapenamanda district of Enga Province has come to an end.
The Tribal fight between the Sau Walep, Lungupin, Itoken Nenae and Yopo tribes with the Kandaolin, Mupapalu, Sikin, Wapukin and Palinau tribes which includes 14 wards in the Middle Lai constituency unanimously agreed to a ceasefire…
This tribal fight that has caused massive destructions of land and properties from middle Lai, Aiyal Valley and Tsaka LLG, notorious killings which include dragging dead bodies and posting on social media among others has finally stopped…[5]
[5] ‘Fighting tribes agree to ceasefire’, Frank Rai, PNG Post Courier, 18 September 2023.
In their 6 September 2023 article entitled ‘Warring Tribes in Enga Halt fighting’, the PNG Haus Bung reported that:
The Tribal fights in Enga Province had eased down after a peace agreement was forged between the rival tribes, the Sikin and Ambulin faction; however, the local a sceptical about the whole thing…
Minor heated arguments and fights have occurred, but brief with the police intervention.
The brief conflicts are an improvement from previous encounters of long-term conflicts that result in hospitalisation or deaths.[6]
[6] ‘Warring Tribes in Enga Halt Fighting’, E’lle-Gore Yasi, PNG Haus Bung, 6 September 2023.
In their 24 November 2023 article entitled ‘Tribes agree to stop fighting, sign ceasefire in Hagen’, The National reported in part that:
The Moke Nambka and Kopi Nokpa tribes of Western Highlands have signed a cease fire agreement to stop fighting.
The cease fire agreement at the Mara House in Mt Hagen came into effect after fighting escalated that resulted in deaths on both sides and properties burnt…
Councillors from both Moge Nambka and Kopi Nopka tribes said they don’t want any more property destructions and loss of lives. The said the fight ended on Tuesday with the signing of the ceasefire agreement…[7]
[7] ‘Tribes agree to stop fighting, sign ceasefire in Hagen’, Jacinta Dokta, The National, 24 November 2023.
Review hearing - 19 December 2023
The Tribunal hearing was conducted at the Brisbane Registry. The applicant appeared with his representative and confirmed that he would be the only witness to give oral evidence at the hearing.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, appeared confused, and notwithstanding his representative indicating to the Tribunal that the criteria had been explained to him and reminding him of those explanations, the Tribunal provided a brief outline of the refugee and complimentary protection criteria to the applicant, who then acknowledged that he understood the criteria.
The applicant confirmed with the Tribunal that his Statutory Declarations of 15 December 2023, and 19 December 2023 are together an accurate account of his background, his fears of harm as to any return to PNG, and his explanation why he had not earlier raised his claims of fear relating to tribal violence with the original decision maker.
Under questioning, the applicant informed the Tribunal that his original economic claims were not maintained and, as he had explained in his declaration of 19 December 2023, had been concocted by [Mr A], whom he had been referred to, and had thought was a migration agent. He told the Tribunal, as he had stated in his declaration, that he had sought the assistance of [Mr A]after having arrived in Australia in December 2022 on a nine-month working visa. He explained that he had originally travelled to Australia for work in order to support himself and further provide financial assistance to his family. He explained that when he arrived in Australia for work, he had intended to return home to PNG after he had completed his work contracts with [named] Employment.
The applicant told the Tribunal that, after arriving in Sydney, he had been sent by his employer, [named], to work on a [farm] in Tasmania, which he did so for about four to five months before he was moved to [Queensland], where he worked on a [farm]. He said that after about five weeks in [Queensland] the work had stopped, and he was then flown back to Tasmania, where he again worked on a [farm] before obtaining his current employment with [a] factory in [Queensland].
However, the applicant explained that, since arriving in Australia, he has learnt through Facebook and WhatsApp messages from family members, and photos and social media postings from family and friends that his village [in] Middle Lai, Wapenamanda District in the Province of Enga, had been engulfed in tribal warfare and in around July 2023 had been destroyed. He explained, in accordance with his earlier declaration of 15 December 2023, that his tribe, the Kaekin tribe, had become involved in tribal wars alongside their allies, the Sikin tribe, against their enemies, the Ambulin tribe, and their allies the Itokon, Lungupin and Sau tribes.
The applicant told the Tribunal that his village had been completely destroyed in the fighting and remained abandoned to this day. He said that his father’s roadside business had been burnt down as had all the houses in the village. He further explained that his mother had told him that, because his father was a businessman of relative wealth in the district, their tribal enemies had accused his father and himself of having bought ammunition and weapons for their tribe and their allies to use in the tribal wars. He explained that, because of these false rumours, he and his family had a higher profile than other members of their tribe, and their enemies would be looking for them so they could kill them and claim to have had an important victory in the tribal fighting.
The applicant told the Tribunal that his parents, both approximately [age] years of age, his [brothers] aged [ages], and his [sisters] aged [ages], together with his [children], had left their village after it had been destroyed and had since been living with friends [and] their children in the village of [Town 1] in the province of Morobe, where they had been hiding since approximately July 2023.

Under questioning, the applicant told the Tribunal that, since his family had relocated to [Town 1], they had not been the subject of any threats, harm and/or any violence, nor had they been the subject of any inquiries as to their whereabouts by any of their tribal enemies. However, it was the applicant’s evidence that they had been in hiding and that they did not enjoy any freedom because they had restricted themselves to their friend’s house in the village.
When asked by the Tribunal why he could not return to PNG and relocate to [Town 1] where his family were now residing, the applicant told the Tribunal that, if he also relocated to [Town 1], he would also need to hide. He explained that if he was also in hiding, he would be unable to socialise and go out and secure work, and that would result in him being unable to assist his family financially, as he presently does from his Australian employment.
During the hearing, the Tribunal provided the applicant and his representative with a copy of the country information as outlined above at paragraphs 21 to 25. In doing so, the Tribunal highlighted the PNG news reports referred to in paragraphs 23 to 25 above, particularly the Papua New Guinea Post Courier’s article outlined at paragraph 23, in which it was reported that:
A devastating tribal warfare that claimed more than 200 deaths and attracted international media attention in the Wapenamanda district of Enga Province has come to an end.
The Tribal fight between the Sau Walep, Lungupin, Itoken nenae and Yopo tribes with the Kandaolin, Mupapalu, Sikin, Wapukin and Palinau tribes which includes 14 wards in the Middle Lai constituency unanimously agreed to a ceasefire…
This tribal fight that has caused massive destructions of land and properties in middle Lai, Aiyal Valley and Tsaka LLG, notorious killings which include dragging dead bodies and posting on social media among others has finally stopped.
After the Tribunal broke for a short adjournment to allow the applicant and his representative to review the Tribunal’s country information, the Tribunal asked the applicant whether he wished to comment on that country information.
In reply, the applicant, with the assistance of his representative, first disagreed with the information relating to the limits in tribal fighting as outlined above in paragraph 22. He told the Tribunal that, even though he had not been involved directly in any of the fighting, he was still at risk because his tribe’s enemies were everywhere and were hunting for him and his father because of the rumours that they had bought ammunition and arms for their tribe and their allies.
The applicant also told the Tribunal that the reports of tribal fighting having stopped in the Western Highlands, as was outlined above at paragraph 25, did not relate to his village and the fighting they had been involved in, which was concentrated in the Wapenamanda District of Enga.
When further questioned about the reports relating to Wapenamanda District, as is outlined above at paragraphs 23 and 36 above, the applicant told the Tribunal that the report was actually talking about invitations to enter into a ceasefire, and that the reality was that there was currently no such ceasefire agreement.
Under further questioning, the applicant and his representative were unable to highlight any sections of that news report that referred to such an invitation to enter into a ceasefire. The applicant and his representative were also unable to identify any sections of this news report that contradicted reports that the tribal fighting has ceased, and that a ceasefire agreement continues to be in place.
In reply to further questioning of the Tribunal as to whether he could relocate elsewhere in PNG to the larger centres of Lae or Port Moresby, the applicant told the Tribunal that he could not do so safely, as his tribal enemies were everywhere and would hunt him down and kill him.
When questioned further, the applicant agreed with the Tribunal’s proposition that reports of the deaths of other tribal members in different locations throughout PNG were often assumed to be as a result of tribal violence and/or acts of revenge, despite there being no confirmation that such deaths were actually a result of tribal payback, revenge, or were a direct result of a tribal dispute.
In his final submissions, the applicant told the Tribunal that he did not believe that there was a ceasefire in his district. He told the Tribunal that the news reports relied upon by the Tribunal were just the opinion of the writer, that there had been an invitation to have a ceasefire, and that it had not yet occurred, and the reality was that the tribal fighting was continuing.
The applicant further told the Tribunal that, even if he moved to the larger centres like Port Moresby or Lae, the police could not protect him from his tribal enemies because the police do not investigate tribal disputes and wars.
The applicant further explained that his family were living in hiding out of fear and to avoid being seen by their enemies. The applicant explained that if he was to return to live with them in PNG, he would not be able to socialise, would have to join them in hiding, and would have no freedom to move around and obtain employment.
The applicant also explained that, in Australia, he is able to freely socialise, has food and housing security, and is able to earn an income that allows him to provide financial assistance to his family in PNG. He said that the reality is that the fighting is still continuing, his village is now deserted and has grass growing everywhere, and that there is no real peace for him and his family until they can return safely to their village and rebuild their home. He said that this cannot presently be achieved, as no one is presently living in, or can return to, the village due to the fighting.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of PNG and provided a copy of the bio data page of his PNG passport. Based on this material, the Tribunal finds that the applicant is who he says he is, and is a national of PNG. PNG is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[8] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[9] This is consistent with the established proposition that it is for the applicant to make his or her own case.[10]
[8] Section 5AAA of the Act.
[9] Ibid (with effect from 14 April 2015).
[10] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[11] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[12] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[11] Fox v Percy (2003) 214 CLR 118
[12] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[13] A similar approach is taken in the Department’s Refugee Law Guidelines[14] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[15] which both provide useful guidance for this Tribunal.
[13] SZLVZ v MIAC [2008] FCA 1816 at [25].
[14] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[15] UNHCR, re-issued February 2019 at [203]–[204].
Economic hardship
The applicant’s original economic claims, as listed in his protection visa application, were discontinued at the hearing and do not relate to any of the reasons outlined in s 5J(1)(a) of the Act.
New Claims – consideration of same – s 423A of the Act
As to the applicant’s new claims of being a victim of tribal violence, the Tribunal noted that applicant’s oral evidence at the hearing was consistent with his declarations of 15 December 2023 and 19 December 2023. The Tribunal has accepted those declarations as truthful accounts of the applicant’s background, his claims for protection, and his explanation as to his new claims having only been raised with the Tribunal on 11 December 2023 and further explained and outlined after that date and prior to the hearing.
In regard to his new claims, the Tribunal has considered s 423A of the Act, which provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. It provides that, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made.
In this regard, the Tribunal has considered the applicant’s oral evidence addressing this issue, which was consistent with his declaration of 19 December 2023. After careful consideration, the Tribunal is satisfied that the applicant has provided a reasonable explanation as to why these claims were not raised or presented to the primary decision maker. The Tribunal accepts that, when the circumstances in PNG changed with the recommencement of tribal violence in the Enga Province, he had sought the assistance of an individual he believed to be a migration agent who, for a fee, submitted a protection visa application on his behalf. However, this application did not correctly reflect his instructions, and did not correctly identify his claims for protection (the details of which have been outlined above at paragraph 29).
Tribal Violence – member of a particular social group (PSG) ‘member of a family and tribe that has been targeted in tribal violence’
The applicant claims that his [village], located in the Wapenamanda District of the Enga Province of PNG, was burnt to the ground during tribal fighting in the Enga province in July 2023. It was his evidence that his tribe, the Kaekin of Middle Lai, had become involved in the provincial tribal fighting through their alliance with the neighbouring Sikin tribe, in the latter’s war with the Ambulin tribe and their allies, the Itokon, Lungupin and Sau tribes.
The Tribunal acknowledges that there has been extensive media reporting of the recent tribal disputes in the Enga Province, which has resulted in the deaths of many members of that community.
In this regard, the Tribunal notes the news article from the PNG Post Courier, outlined above at paragraph 23, which reports that a ceasefire has been agreed between the warring tribes, which are identified as including the applicant’s tribe’s ally the Sikin, and their enemies, the Lungupin and Sau.
Noting this report and other media reports relied upon by the applicant, together with the evidence of the applicant as to this issue of tribal fighting, the Tribunal is satisfied on the evidence before it that the applicant’s tribe was involved in tribal fighting in the Wapenamanda District of the Enga Province of PNG in or around July 2023. The Tribunal is also satisfied that the applicant’s village [was] destroyed by fire during that conflict.
The applicant claims that he cannot return to his home district because of the ongoing tribal fighting, which resulted in the destruction of his family’s home and his father’s roadside produce store, as his family’s tribal enemies are still hunting for him and his family. He claims that his mother had recently told him that there had been rumours and accusations circulating within their home district that, because of his father’s standing and reputation as a businessman with some wealth, the applicant and his father had been accused of buying and supplying ammunition and weapons to some of the fighters from their district. He further explained these rumours, although false, had elevated his father’s and his own profile, and their enemies would be hunting both his father and him because of these rumours.
It was also the applicant’s evidence that, after the attack upon his village in July 2023, his family had fled their village and had since been living with friends in the village of [Town 1] in the Morobe Province of PNG. He explained that his [brothers] and [sisters], together with his own [children], had relocated to [Town 1] where he said they remained in hiding at their friend’s home.
Under questioning, the applicant told the Tribunal that, since having relocated to [Town 1], his family had not been the subject of any violence or other harm, or any threat of such violence or harm, and that they were not aware of any enquiries having been made by their tribal enemies as to their current location. He explained that they had been helping their friends with their market garden, which provided income to the families through the sale of their produce locally.
After careful consideration, the Tribunal finds that the tribal fighting in the Wapenamanda District of the Enga Province of PNG is now the subject of a ceasefire agreement, and that presently hostilities have apparently halted. However, given the long history of these tribal disputes recurring in this district, the Tribunal accepts the submission of the applicant’s representative that the situation within the applicant’s home district is “unsettled and very fragile”.
Therefore, the Tribunal has considered the provisions of s 5L of the Act, which provides that a person is to be treated a member of a PSG other than that person’s family if a characteristic, other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic. That characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
In its consideration, the Tribunal finds that the applicant is a member of a PSG being ‘member of a family and tribe that has been targeted in tribal violence’.
Therefore, on the evidence before it, and for the reasons outlined above, including the Tribunal’s acceptance of the applicant’s evidence as to his fears of harm arising from the tribal fighting in his district within the Enga Province of PNG, it is accepted by the Tribunal that the applicant does face a real chance of persecution involving serious harm if he was to return to the Wapenamanda District of the Enga Province of PNG in the reasonably foreseeable future, because of his membership of the PSG of ‘member of a family and tribe that has been targeted in tribal violence’.
The Tribunal finds that the applicant’s fears of persecution, arising from his membership of the PSG of him being a ‘member of a family and tribe that has been targeted in tribal violence’, as to his return to the Wapenamanda District of the Enga Province of PNG in the reasonably foreseeable future are well-founded.
Relocation
Having found that the applicant does have a well-founded fear of persecution in relation to his return, in the reasonably foreseeable future, to the Wapenamanda District of the Enga Province of PNG, the Tribunal, in accordance with s 5J(1)(c) of the Act, has considered the ‘relocation principle’, namely, whether that well-founded fear relates to all areas of his receiving country, PNG.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]-[81].
In this regard, it was the applicant’s evidence, both in his Statutory Declaration of 15 December 2023 and orally at the hearing, that his family fled their village for [Town 1] in the Morobe Province of PNG in July 2023, where they continue to reside at a friend’s home.
Under questioning, the applicant conceded that his family, whilst residing in [Town 1] for the past five months, have not been the subject of any violence or other harm, or any threats of harm, from any of their former tribal enemies. It was further conceded by the applicant under questioning that he and his family were also not aware of any actual inquiries having been made about their whereabouts in [Town 1] or elsewhere in the Morobe Province. However, it was also the applicant’s evidence that his family were in hiding in [Town 1] as their tribal enemies were elsewhere, and would continue their attempts to locate him and his family and do them harm.
When asked by the Tribunal why he could not relocate to [Town 1], or elsewhere in PNG such as the larger centres of Port Moresby or Lae, it was the applicant’s response that the fighting is everywhere, and his enemy’s eyes are everywhere.
Under further questioning as to this issue of relocation, the applicant’s responses were vague and relied solely upon his belief that the fighting would continue and that, as he and his father had an elevated profile because of the allegations that they had supplied ammunition and weapons to members of their tribe and their tribe’s allies, his enemies would look for him all over PNG until they found and killed him.

Noting the country information relating to tribal violence in PNG, and some of the rules and/or limitations as outlined above at paragraph 22, and the evidence of the applicant that he had not been directly involved in any of that violence, together with the evidence before the Tribunal that the applicant’s family has successfully relocated and since remained at [Town 1] in the Morobe Province of PNG for the past five months without incident, the Tribunal is not satisfied that the applicant cannot relocate within PNG so as to avoid any chance of persecution as claimed.
In coming to this view as to the applicant’s ability to relocate within PNG, the Tribunal has also considered the DFAT report as outlined above at paragraph 21, particularly the information under the heading of ‘Inter-Group Violence’ that “DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG”. However, given that his family has not experienced any harassment or violence since they relocated, the Tribunal finds that the applicant can also relocate within PNG and can thus avoid any real chance of persecution involving serious violence on account of his membership of the PSG of being a ‘member of a family and tribe that has been targeted in tribal violence’.
Therefore, the Tribunal finds that overall, the applicant does not face a real chance of persecution involving serious harm if he was to return to PNG in the reasonably foreseeable future in all areas of his receiving country.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Complimentary protection
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgements of the High Court in SZAT v MIAC and SZFDV v MIAC, which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZAT v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Given the Tribunal’s findings as outlined above at paragraphs 77 to 79, the Tribunal is satisfied that the applicant can relocate within PNG, and outside of the Wapenamanda District of the Enga Province, so as to avoid a real risk that he would suffer significant harm upon his return to PNG. The Tribunal is satisfied that such relocation would be reasonable and practicable, given his family and his own children have so relocated to [Town 1], where they have sustained themselves for the past five months, have not been located by tribal enemies, and have not been the subject of any violence or other forms of harm arising from the tribal fighting that had caused them to leave the Wapenamanda District in or around July 2023.
Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if, under all the circumstances, it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution and, having considered all of the applicant’s claims both individually and cumulatively, finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, that the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than PNG.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
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[2024] AATA 1138

2 January 2024

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