2318017 (Refugee)

2318017 (Refugee) [2024] AATA 980 (29 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2318017
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:29 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 January 2024 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – economic conditions and hardship – late claim of tribal violence – deaths of tribal warriors and burning of village while applicant in Australia – no direct threats or harm – family relocated – adverse inference drawn – country information – peace agreements and surrender of weapons – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 411(1)(c), 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 7 November 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 1 October 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 7 November 2023. 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 23 January 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
The applicant was not 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.
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 lodged on 1 October 2023 and the annexed copy of the applicant’s PNG passport’s bio data page;
·The applicant’s application for review of 7 November 2023 and the annexed decision record of 7 November 2023;
·The administrative and movement records of the Department relating to the applicant;
·Copies of emails between the applicant and his purported lawyer, [Mr A] (using the email address [Email address]), in which the applicant wrote on 7 November 2023 that:
Papua New Guinea PG some short of trouble issues. Mainly in my province, which is Enga province. Last month ago Australian ABC news came, trouble issued in my place. I am really scared to return to Papua New Guinea. Please protect me. I just attached one video which has been took place was taken photos. As you can see. Sorry if you need such information like that please provide too…I hope and believe it will be okay; and
·Copies of a series of eight photographs, with two depicting groups of men with white painted faces carrying rifles, one depicting five apparent naked male corpses, and five depicting burning structures and bushland.
Claims for protection
The applicant, in his protection visa application, stated that his country (PNG) is a very poor country, that there are very few jobs available, and the pay is very low. He stated that it is very difficult to support himself and his family and that is why he came to Australia. His claims (as summarised below) are that:
·He came to Australia as there are many jobs in Australia and he can work in Australia and send money back to his family in PNG, which will help his family pay their rental and food costs;
·He fears returning to PNG as he will not be able to work and get the good pay he receives in Australia, and he will suffer harm by not being able to earn sufficient funds for everyday living expenses;
·He did not seek help within PNG as everybody in PNG is poor and they are facing the same problems he faces, and the authorities cannot help him because they do not have the funds to help their people; and
·He did not try to move to another location in PNG as the situation is the same throughout PNG.
New Claim
At the commencement of the hearing, the applicant raised the claim, for the first time, that he feared returning to PNG because of the tribal violence in his home district of [District] in the Enga Province of PNG. The applicant relied upon his email instructions to his former lawyer in November 2023, in which he raised these claims (see above at paragraph 17). He informed the Tribunal at the hearing, as outlined below, that his family had contacted him through [Social media] in around September 2023 providing him with photos of the purported death of tribal warriors and the burning down of his village and other villages in [District]. He told the Tribunal that his family urged him not to return to PNG because the Tribal fighting in his home district had recommenced. It was the applicant’s evidence at the hearing that his family had asked him to apply for protection so he could regain his work rights and continue to financially support them, and to remain in Australia for both economic reasons and because of the re-commenced tribal violence in his home district of [District]. He now further claims (as summarised) that:
·    If he returns to PNG, his tribal enemies will find him, and he may be killed;
·   He cannot relocate within PNG as his tribal enemies move around the country and might find him anywhere and kill him; and
·   He cannot rely upon the police or any authority in PNG to protect him, as they have not been able to stop the tribal violence in [District] and the Enga Province previously.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 7 November 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims 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 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 a hearing
On 1 December 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 23 January 2024 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.[1]
[1] ‘Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea’, Andrew Kobylinski, Australian Institute of International Affairs, 14 March 2022.
The Papua New Guinea Post Courier reported on 26 May 2023, in their article titled ‘Tribe in Sirunki surrenders arms’, that:
Police in Enga Province has commended the Lyain tribe in Sirunki for taking a stand against firearms and illegal production and sale of drugs and homebrew.
Provincial Police Commander Chief Superintendent George Kakas commended the tribe leader Peter Amos for working with community leaders to encourage youths to dispose illegal firearms and home brew making equipment…
He said members of the tribe came in numbers, painted in white clay, and chanting to remove the illegal firearms and holding spades as a sign to go back and work on their land…[2]
[2] ‘Tribe in Sirunki surrenders arms’, Mal Taime, 26 October 2023, PNG Post Courier –
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…[3]
[3] ‘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 locals are 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.[4]
[4] ‘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…[5]
[5] ‘Tribes agree to stop fighting, sign ceasefire in Hagen’, Jacinta Dokta, The National, 24 November 2023.
Review hearing - 23 January 2024
The Tribunal hearing was conducted at the Brisbane Registry with the applicant appearing in person and the interpreter by video conference. The hearing was conducted in the English and Pidgin languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh.
The applicant, at the commencement of the hearing, raised a new claim, that of tribal violence, and requested to rely upon an email he had forwarded to his former lawyers instructing them as to this claim. He also told the Tribunal he had photos in support of this claim, which were currently on his mobile phone and had been originally sent to him from his family through [Social media] in or around September 2023.
The Tribunal then made arrangements for the applicant to forward this information to the Tribunal (refer to paragraph 17 above).
As to this information, the applicant told the Tribunal under questioning that he did not know when, how, or by who the photographs had been taken, but believed that some of his uncles and other relatives had provided the photographs to his immediate family who had then forwarded the photographs to him. He further explained that he understood that the photographs were all related to tribal fighting and the burning down of his family’s village in [District] in 2023.
The Tribunal then provided an outline of the refugee and complimentary protection criteria to the applicant, who then acknowledged that he understood the criteria.
The applicant told the Tribunal that he had been assisted in completing his application for the visa by his then lawyer, who recorded his economic claims and was supposed to have informed the Tribunal of his new claims of tribal violence after he had instructed his lawyer to do so in November 2023, as outlined in the email he provided to the Tribunal (refer to paragraph 17 above).
The applicant told the Tribunal that he had been working in [Work sector] in Port Moresby from 2020 to 2022. He told the Tribunal that when he visited his family in December 2022, they told him to go back to Port Moresby and organise his paperwork so that he could go to Australia and make money to send back to them, as the economic situation in PNG was not good and he was not earning enough money to support them.
The applicant stated that he came to Australia for work through [Agency 1] in January 2023. He said that he was initially working for [Agency 1] [doing a job task] in [Town 1], Queensland. However, he said that [Agency 1] had employed 200 to 300 workers but did not have enough regular work so, upon his request, they released him from his contract in around August 2023.
Under questioning, the applicant told the Tribunal that after being released from his employment contract with [Agency 1], he had lost his working rights in Australia. He said he then applied for protection so he could regain his working rights and seek protection because of his fears relating to the poor economic situation in PNG. He told the Tribunal he had obtained employment with [Agency 2] directly after leaving [Agency 1] and applying for protection, and that he was now working at [Town 2] in Queensland, where he worked on [farms].
The applicant further explained that in about September 2023, he had received information, including the photos he had provided to the Tribunal, from his family, who told him that, because of the trouble in his village and the economic situation in PNG, he should stay in Australia.
Under questioning, the applicant told the Tribunal that tribal fighting had re-commenced in and around his village in [District] in around September 2023 and that, if he returned to PNG, his tribal enemies might find him and kill him. He further explained that his tribe was [Tribe 1], and their village was [Village].
Under further questioning, the applicant told the Tribunal that his tribe and village had been warring with a nearby tribe which he said was [Tribe 2] or a similar tribe. He was unable to spell or further describe the name of this tribe.
The applicant told the Tribunal that his father, mother, [Age]-year-old brother, and [Age]-year old and [Age]-year old sisters had been farmers prior to the recent outbreak of tribal violence, and that they had left [District] in 2023 after the purported September 2023 outbreak of tribal violence.
The applicant told the Tribunal that his father was now living with his Aunty in Port Moresby but was not working in order to keep a low profile for fear of being recognised by their tribal enemies. He said his mother and siblings were now living in [Town 3] in Enga province, which was not far from their home village but in the next district.
When questioned as to whether he or any member of his immediate family had been directly involved in any of the tribal fighting which involved his tribe and village, the applicant’s reply to the Tribunal was that none of his immediate family have been so involved, but that some of his other relatives had fought and been killed.
Under further questioning, the applicant told the Tribunal that, since his immediate family had relocated, none of them had been threatened with violence, approached by any of their purported tribal enemies, or harmed in any way by anyone. He further explained that, prior to and during the tribal violence in September 2023, none of his immediate family had been the subject of any harm and/or threats of harm by any of their tribal enemies.
When questioned why, given he and his family had not been the subject of any direct threats and/or harm arising from this Tribal violence, he fears returning to PNG, the applicant told the Tribunal that, as he was known to his tribal enemies, they might find him and then kill him if he returned to PNG.
The Tribunal then discussed the relevant available country information, as outlined above at paragraphs 21 to 26, and in particular the media reports at paragraphs 23 to 26 indicating that the tribal violence had recently been resolved by the surrender of arms and by treaties being entered into by many of the warring tribes in Enga Province.
The applicant in reply told the Tribunal that PNG is not like Australia and that in rural areas there is not very good media coverage; although there may have been some treaties entered into, there was still tribal violence in his home district.
The Tribunal then asked the applicant why he could not return to Port Moresby, where he had previously lived and worked for several years without incident before arriving in Australia in January 2023. In reply, he told the Tribunal that, as he had said earlier, his tribal enemies might find him as they move around the country and if they find him, they might kill him.
The applicant, when called upon to make any final submissions, told the Tribunal that he had two points he wished to highlight to the Tribunal. First, he told the Tribunal that his lawyer had raised his claim as to the economic crisis in PNG and that his family is reliant upon him earning a good income in Australia. As such, he asks the Australian government to give him protection for this reason. Second, he said that his village and local area has been destroyed in recent fighting, and that if he was to return to PNG he will be killed, so he is asking the Australian government to give him protection.
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 their 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.[6] 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.[7] This is consistent with the established proposition that it is for the applicant to make his or her own case.[8]
[6] Section 5AAA of the Act.
[7] Ibid (with effect from 14 April 2015).
[8] 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.[9] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[10] 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.
[9] Fox v Percy (2003) 214 CLR 118
[10] 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.[11] A similar approach is taken in the Department’s Refugee Law Guidelines[12] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[13] which both provide useful guidance for this Tribunal.
[11] SZLVZ v MIAC [2008] FCA 1816 at [25].
[12] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[13] UNHCR, re-issued February 2019 at [203]–[204].
Economic hardship
The applicant claims that he came to Australia to obtain work and to send money back to his family in PNG, which will help them pay for their rent and food costs. He claims to fear returning to PNG because he will not be able to get work or receive a comparable pay to the pay he gets in Australia, and that he will consequently suffer harm by not being able to earn sufficient funds to cover the living expenses of himself and his family. He further claimed that he did not seek help within PNG, as everybody in PNG is poor, the population at large is all facing the same problems he faces, and that the authorities cannot help because they do not have the funds to help their people.
Notwithstanding the relevant DFAT country information (as outlined above at paragraph 21), which supports the applicant’s claims as to the economic situation in PNG and that it is a poor country, his claims do not relate to any of the reasons outlined in s 5J(1)(a) of the Act.
It was the applicant’s evidence at the hearing that he had come to, and wished to stay in, Australia because he believed he would enjoy better employment opportunities that would provide him with sufficient income to support himself here in Australia, and in turn allow him to financially assist his immediate family members in PNG.
Additionally, there is no information and/or evidence before the Tribunal that suggests that the applicant has been targeted in any way, by way of employment opportunities having been withheld or withdrawn from him. Rather, it was his belief that there were better opportunities and employment prospects for him in Australia. It was the applicant’s evidence that, prior to arriving in Australia, he had been employed in the [Work sector] in Port Moresby for several years, and that the poor economic situation in PNG was something that all of the population faced, and it was not a situation specific to him.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm arising from the economic situation in PNG. The Tribunal finds that the applicant’s fears in this regard are not well founded.

Additionally, on the evidence before it, the Tribunal finds that there has been no evidence placed before it to indicate that the applicant holds any fears, or would face a real risk, of any form of ‘significant harm’ as defined in s 36(2A) of the Act, arising from the economic situation in PNG, if he was to return to PNG in the reasonably foreseeable future.
New claim of tribal violence
The applicant raised his new claim of his fear of harm arising from the purported recent re-commencement of tribal violence in his family’s home district of [District] in the Enga province of PNG. This claim was raised for the first time by the applicant at the commencement of his hearing, during which he told the Tribunal that, after his family had contacted him in about September 2023 urging him not to return to PNG because of the trouble in [District], he had instructed his then lawyer to add this claim to his application for the protection visa.
In this regard, and by way of an explanation as to why he had not raised this claim and any evidence in support of same with the original decision maker, the applicant told the Tribunal that he had only been made aware of the re-commencement of tribal violence in [District] by his family in September 2023, after he had made his application for the visa in August 2023.
The applicant further explained that he had conveyed his fears in regard to the tribal violence to his then lawyer in an email of 7 November 2023 (as outlined above at paragraph 17), and had thought that they would convey this information to the Tribunal. However, his then lawyer did not provide that information to the Tribunal, apparently due to a failure by the applicant to pay for their further assistance and representation as outlined in their emails to the applicant.
The Tribunal notes that this claim was made for the first time by the applicant at the hearing. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then 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.
After careful consideration of the facts of this matter, and with reference to both the applicant’s evidence that he had only been informed of the risk of harm to him arising from the re-commencement of tribal violence in his home district by his family in September 2023, one month after he had applied for the visa. and to his evidence and the copy of the email he forwarded to his former lawyer in which he raises, although very vaguely, this claim, the Tribunal has accepted the applicant’s explanation as to why he had not raised this claim before the primary decision was made as being reasonable.
As to the applicant’s claim relating to tribal violence, it was his evidence that it was his immediate family who raised this matter with him. He told the Tribunal at the hearing that, after he had left his employment with [Agency 1] and lost his work rights in Australia, he had been told by his family to apply for protection so he might regain his work rights and continue to financially support them. It was also his evidence that he had done so, and after later being told by his family of the tribal violence in his district and the destruction of his village, he was then also told by his family that he should stay in Australia not only to earn money, but also because he was at risk of harm and of being killed by his tribal enemies if he returned to PNG.
At the hearing, the applicant conceded that he and his immediate family had not been the subject of any direct threats of violence or of any harm arising from the tribal violence in their district. Further, he told the Tribunal that after his immediate family had relocated from their village, after it had been destroyed in the fighting, to a nearby village in the case of his mother and siblings, and to Port Moresby in the case of his father, none of them had been the subject of any harm, threats of harm or confrontations with any of their purported tribal enemies.
Given the applicant also agreed that he and his immediate family had never been directly involved in any of the tribal fighting, and with reference to the country information as outlined above at paragraph 22 as to the nature and limits of tribal fighting, the Tribunal is not satisfied that the applicant and/or his family have been, or will be, targeted in the reasonably foreseeable future by their tribal enemies for any form of harm, given they were not involved in any of the fighting.
Additionally, it was the applicant’s evidence, as outlined above at paragraph 68, that since relocating, his immediate family have not been the subject of any tribal violence and/or threats of violence arising from the tribal violence that has occurred in his home district. Further, the country information outlined above at paragraphs 23 to 26 indicates that the tribal violence that has been ongoing for many years in the Enga Province has been resolved by way of the surrender of weapons to the authorities and the entering of a series of peace agreements between many of the warring tribes.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm arising from the tribal violence in his home district if he was to return to that district and/or PNG more generally in the reasonably foreseeable future. Additionally, if further violence was to emerge in his family’s home district, the applicant would be able to avoid any chance of harm through relocation to another part of PNG and could, for example, return to Port Moresby where he has previously resided and worked over several years without having been the subject of any incidents of harm and/or threats of harm arising from tribal violence in the [District] of Enga province.
The Tribunal finds that the applicant’s fears in regard to the tribal violence that has occurred, and is on the applicant’s evidence still occurring, in [District] is not well-founded.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal 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.
…

[2024] AATA 980

29 January 2024

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