2318017 (Refugee)

The applicant sought review of a decision to refuse a protection visa. The dispute concerned whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons, or a real risk of suffering significant harm if returned to Papua New Guinea (PNG). The matter was heard by David James.

The court was required to determine if the applicant had a well-founded fear of persecution under s 5J(1) of the Migration Act 1958 (Cth) and a real chance of being persecuted for one of those reasons if returned to PNG. Alternatively, the court had to consider if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to PNG, the applicant faced a real risk of suffering significant harm as defined in s 36(2A) of the Act.

The applicant initially claimed to fear returning to PNG due to economic hardship and lack of employment opportunities. However, at the hearing, he raised a new claim of fearing tribal violence in his home district of Enga Province, supported by photographs and family communications. The court considered country information from DFAT, which indicated that PNG is a lower middle-income, conflict-affected, and fragile state with widespread poverty and limited job prospects. The information also detailed frequent outbreaks of tribal violence, particularly in the Highlands region, often resulting in death and displacement, and noted the severely limited capacity of the Royal Papua New Guinea Constabulary to provide protection. The court applied the "real chance" test for well-founded fear and the "real risk" test for significant harm, noting these standards are the same. An adverse inference was drawn due to the late introduction of the tribal violence claim.

The court affirmed the delegate's decision to refuse the protection visa, finding that the applicant had not established a well-founded fear of persecution or a real risk of significant harm upon return to PNG.