2319784 (Refugee)

2319784 (Refugee) [2024] AATA 2468 (20 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Anna Woods (MARN: 5512716)
CASE NUMBER: 2319784

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Gabrielle Deal
DATE:20 May 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 20 May 2024 at 10:03am
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – young male – race – tribal affiliation – escalation of tribal violence – obligation to protect his family and land – fear of killing – property destroyed – church leadership – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
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 10 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) arrived in Australia [in] December 2022. The applicant applied for the protection visa on 2 October 2023.
On 8 November 2023 the delegate refused to grant the protection visa. While not making any findings of fact in relation to the applicant’s claims, the delegate found that the applicant’s claims to fear returning to PNG for economic reasons did not relate to any of the reasons in s 5J(1)(a) and that such harm did not amount to ‘significant harm’ within the meaning of s 36(2A). Overall, the delegate found the applicant did not meet the relevant definition of refugee, did not face a real risk of significant harm and was not a person in respect of whom Australia had protection obligations. At the review stage the applicant provided the Tribunal with a copy of the delegate’s decision refusing the protection visa.
The applicant appeared before the Tribunal on 8 March 2024 to give evidence and present arguments.[1] The Tribunal also received oral evidence from the applicant’s representative. The hearing was conducted with the assistance of an interpreter in the Pidgin (Tok Pisin) and English languages.
[1] The originally scheduled hearing on 27 February 2024 had to be immediately adjourned when at commencement the applicant said he could not understand the interpreter.
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.
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.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS
The applicant’s claims can be summarised as follows:
·He is a young Christian male from [Village 1] in [Ward 1] of [District 1], Enga Province in the Highlands of PNG. He is from the [Tribe 1] in the [Area 1].
·His parents were missionaries and his father worked as a pastor for some 20 years before retiring and becoming a local and tribal leader in the area. His father is now [age] years of age. His mother passed away from [medical condition 1] in 2021.
·He grew up with [specified family members] in Enga. The family lived on the family land that had been inherited through the generations. As adults a number of them built their own homes on the land near their parent’s house.
·After completing high school in [Town 1] he briefly studied [subject 1] in Port Moresby but had to stop because of the cost. He completed a short course in [occupation 1] in [Town 2]. When he could not find work in [occupation 1], he returned to work on the family farm in Enga, including on the family’s big [product 1 farm]. In a ceremonial marriage in 2017 he married his wife, and they have [young] children.
·There are very few jobs in PNG and the pay is very low. It was difficult for him to support himself and his family in PNG. In December 2022 he travelled to Australia on a seasonal workers program so that he could earn money to send home to support his family. He worked for an odd 6 months picking fruit in [State 1], however after being mistreated by this employer he moved to [State 2] for work on a [farm]. When he applied for another work visa it was refused because he still had 90 days remaining on his previous work visa.
·In September 2023 he was advised by his family that violence had escalated in their part of [Town 1] turning the area into a battlefield. Their properties have been burnt down and local infrastructure destroyed.
·In October one [younger brother] was killed while at school as a consequence of the escalation of violence in the area.
·His father tried to speak with tribal members to de-escalate the situation but there were too many people involved and the conflict had escalated. For their safety his family, including his father, eventually relocated to [Town 2] to live with his [sister]. They are internally displaced people, and this arrangement is only temporary. They are living in cramped conditions with many other people, it is unsafe because of nearby tribes, they are struggling to subsist, not eating much, or sleeping, and are suffering financial and mental health issues.
·In November one [brother] who was fighting in the tribal conflict was killed. They have not been able to locate his body.
·He believes his brothers were targeted on account of their father’s profile and the family’s profile. As a young male member of the tribe he is expected to protect his family, land and community, and if he returns he will be permitted and fight and may feel pressured to do so, although he does not agree with it. He is expected to take on his father’s leadership role when he passes away which also places him at heightened risk. Even after the conflict in order to re-acquire their land they will either have to pay the winning tribe or go through a traditional process called an “appeal” which can lead to further fighting and which will also pose a risk to his life.
·He fears harm in all areas of PNG. He cannot live in Enga because his home was burnt down, there is no infrastructure or services, and it is not safe there. He cannot live in [Town 2] because he would struggle to find employment, he does not have a right to settle there, the land belongs to other tribal groups, and it is not safe there. His family had no choice but to relocate to [Town 2] but they fear for their safety and keep a low profile and his safety could not be guaranteed in the area. His presence in the area might also further jeopardise the safety of his fmaily. He could not relocate to Port Moresby because of the crime and lack of security there. He will not be able to easily find a job given unemployment in the area and would not be able to find accommodation. Many tribesmen have fled to seek refuge in Port Moresby and he could easily be targeted there by his tribe’s enemies. It would not be practicable or reasonable for him to relocate to Port Moresby with his wife and [young] children, his wife and daughter might be subject to gender-based violence, there is crime and tribal violence in the area, travelling there might be dangerous, and relocating there would not be sustainable in the long term as he will eventually have to return to Enga where he would be obliged to fight with the tribe.
- He fears harm on account of his membership of particular social groups comprising “male members of the [Tribe 1]”, “male members of families targeted because their father is a tribal leader”, “male members of families targeted for retributive tribal violence” and “male members of a prominent family group belonging to the [Tribe 1]”.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant has consistently claimed to be a citizen of PNG, not to be a citizen of any other country, and to not have a right to reside elsewhere, and based on this and his documentary evidence including his PNG passport, I accept this. I consider PNG the receiving country.
The applicant claims he travelled to Australia on a seasonal workers visa and worked for about 5 or 6 months in [State 1] picking fruit before he left that role because he claims his employer, [Employer 1] mistreated him. Publications[2] report of the mistreatment of seasonal workers employed to work in [specified locations] by this [labour hire] company [Employer 1], with allegations these seasonal workers had not been given sufficient hours of work, among other things. [Details deleted.] Based on these reports and the applicant’s particularised claims in this regard, including his naming the relevant company, and that he clearly travelled to Australia on a visa to participate in a seasonal workers scheme and is from PNG I am willing to accept he is one of the seasonal workers affected. The applicant claims that after leaving [State 1] he travelled to [State 2] to work at a [farm] but was unsuccessful in securing another work visa and it appears he has now been unemployed for an extended period.
[2] [Source deleted.].
The hearing on 27 February 2024 had to be adjourned when at commencement the applicant said he could not understand the Pidgin interpreter (booked by the Tribunal after the applicant’s representative advised by email dated 3 February 2024 that the applicant required a “Pidgin” interpreter from Papua New Guinea). Following the hearing the applicant’s representative advised the Tribunal that the applicant required a Pidgin interpreter who spoke the “Tok Pisin” dialect. The Tribunal have been advised that there are a relatively small number of sufficiently qualified Tok Pisin interpreters in Australia who almost always appear via video link including because many are located in states outside Victoria. Accordingly, on 8 March 2024 the adjourned hearing was resumed and conducted with the assistance of an interpreter in the English and Pidgin (Tok Pisin) languages, via video link. The interpreter undertook a “test call” with the applicant prior to the hearing to confirm the applicant understood him. At hearing the applicant confirmed he understood the interpreter.
The hearing went for just over 3 hours with a short break roughly mid-way. The interpreter was initially using a Bluetooth headset which affected the sound quality; it is for this reason that the Tribunal routinely advises interpreters not to use these Bluetooth headsets. While not raised as an issue at the time I considered these noise issues might present a challenge and so arranged for the Tribunal to call the interpreter on his mobile phone for the audio (rather than him using his Bluetooth headset) and had the interpreter mute the sound on his video. This solution was effective and addressed the noise issues that had arisen with the use of the Bluetooth headset. This issue was promptly solved in under 10 minutes and later in the hearing all in attendance agreed to go over time which additional time made up for the short period lost at the beginning when dealing with these noise issues. At another point in the hearing the interpreter indicated he had no other engagements after the hearing and was able to continue to interpret if the hearing went over time. While in a private office with a door it appeared the interpreter’s office was located within a larger office or community space with other people and at one point a man briefly and seemingly accidentally opened the interpreter’s office door but promptly left closing the door behind him. At hearing the applicant was asked to detail his claims for protection an odd hour and fifty minutes into the hearing and once he had done so he was also asked a series of follow up questions and some country information was put to him, and he was then given an opportunity to respond. The applicant provided additional detailed oral evidence toward the end of the hearing and neither the applicant nor his representative indicated any issues at the time. I consider the minor sound issues that were resolved and the interpreter’s conduct during the hearing did not materially affect the applicant’s ability to provide his evidence or otherwise meaningfully engage in the hearing. I also note the applicant was initially given a week to provide additional written submissions after the hearing, which was extended by another week after an extension request was granted and that with the assistance of his representative, he subsequently provided written submissions to the Tribunal on 24 March 2024. I consider the applicant has been given adequate opportunity to present his claims and evidence at the review stage.
The applicant arrived in Australia in December 2022, left his employer in [State 1] in May or June 2023, travelled to [State 2] to work on a [farm], and applied for another work visa, which was refused in June 2023 as he still had more than 90 days existing on the previous work visa. The applicant did not apply for a protection visa until 2 October 2023. It is submitted that this delay is attributable to the exploitation the applicant suffered from his former employer, his “vulnerability” in Australia, and that it occurred in the context of him having had a valid visa to reside in Australia for 9 months. It is also submitted that cultural factors such as the different conceptualisation of time by Papuan New Guineans contributed to the delay and that this was “material to any assessment of the credibility of the applicant in determining the subjective element” and reliance was placed on general commentary in UNHCR guidelines on the impacts of cultural factors. Another publication[3] provided by the applicant talks about “PNG time” as a disease that has spread across all sectors of the community whereby leaders, particularly in the public sector, spend considerable work time pursuing personal interests rather than attending to work matters which is often identified as the reason for inefficiencies in the delivery of government programs. At hearing I asked the applicant whether when he left PNG to travel to Australia in December 2022 there were any problems in PNG or whether he just travelled to Australia to work and the applicant said the only reason was to find employment in Australia, to come to Australia for employment purposes. The applicant claims that it was when the violence broke out near his area, which he has consistently said was in about September 2023, that he decided to apply for a protection visa. Based on the applicant’s spontaneous and plausible oral evidence at hearing I consider the delay in his applying for a protection visa was because he initially only travelled to Australia to work and did not flee PNG in fear of harm and it was only after he was notified by his family of the escalation of tribal violence in his particular area that he applied for the protection visa in October 2023.
[3] Murray Prideaux and J. Cook, Australian & New Zealand Academy of Management, ‘Leadership in Papua New Guinea: Exploring context and barriers’, (2006) <
The applicant’s claims and evidence in relation to PNG need to be considered in the context of the conditions in PNG. Publications[4] report PNG is underdeveloped and that around 85 percent of the population live in rural communities. It is reported that statistics from the World Bank indicate that only 49 percent of the population have a mobile phone subscription and 11 percent have use of the internet. There are also reports of poor service delivery given PNG’s geography, for example, there are widespread rivers and swamps that hinder infrastructure development and transportation links in the Gulf Province. This accords with the applicant’s oral evidence at hearing that he tries to keep in regular phone contact with family in the Highlands but that it is not always possible because sometimes there is a problem with coverage and he cannot contact them. DFAT’s report also indicates a lack of identity documentation in PNG, noting that 80 percent of Papua New Guineans lack a clear form of identification and that the national identity card, introduced to remedy this situation, is subject to problems and that only about 500,000 people (of a population of now over 9 million[5]) had signed up to it by the end of 2018. The publications also report that only 13.4 percent of children under 5 have had their birth registered with a civil authority in PNG.
[4] Grant Walton and David Jackson, U4 Anti-Corruption Resources Centre, ‘Reciprocity networks, service delivery and corruption: The wontok system in Papua New Guinea’ (2020) < ; DFAT, 'DFAT Country Information Report. Papua New Guinea', 6 September 2022, 20220906090037; Pacific Community, ‘ Stat of the week: In Papua New Guinea only 13.4% of children aged under 5 had their birth registered with a civil authority’,(15 November 2021) <
[5] DFAT, 'DFAT Country Information Report. Papua New Guinea', 6 September 2022, 20220906090037.

In the applicant’s protection visa application he claimed he travelled to Australia because PNG was very poor, there were very few jobs, the pay was very low, and it was difficult to support himself and his family. He could work in Australia and send money home. If he returned to PNG he feared not being able to work or earn a good income sufficient to enable him to support his family and pay for everyday living expenses. He said he did not try to relocate because these economic issues were country wide. As noted above at hearing the applicant confirmed that when he first travelled to Australia he was not fleeing harm in PNG and that he just travelled to Australia to work on the seasonal workers scheme, which is plausible in all the circumstances, and I accept this.
When the applicant applied to the Tribunal for a review of the delegate’s decision the applicant provided a statement claiming to fear harm in PNG on account of the tribal warfare in Enga province. At hearing I asked the applicant why these claims were not included in his protection visa application given they were what precipitated his application. The applicant has claimed in submissions and at hearing that he did not fill out his protection visa application and did not review it prior to it being lodged on his behalf but realises now that he should have. At hearing he claimed a man in Queensland who helps people from PNG apply for protection filled out = his protection visa application and that this man had made up the information that was put into the application. When I asked the applicant for more detail about the process undertaken to fill out the protection visa application, his explanation was a little vague, although he appeared to state that his friend knew the man and that the applicant provided his friend with the details who handed these onto the man who then arranged for his protection visa application to be lodged. The applicant said he paid him $600 when I asked if he had paid for this assistance. While the applicant was not interviewed at the primary stage as is reflected in the delegate’s decision the Department subsequently wrote to the applicant advising him on how he could provide additional information in relation to his claims and the applicant did not provide anything further at that time.
The protection visa application lodged with the Department states the applicant is a single Christian born in [Town 1 variant], Port Moresby, lists no family, states he went to primary school in Port Moresby, worked as [an occupation 2] at a [business 1] in Port Moresby from [year] and had only ever lived in [Town 3] Port Moresby until his departure from PNG in 2022. In contrast the applicant claimed at the review stage that he was born in [Town 1], [in] Enga Province, [District 1], grew up in [Village 1 variant] and was from the [Tribe 1] in the [Area 1]. He claimed his mother passed away from [medical condition 1] in 2021, that his father was [age], that the applicant had grown up with [specified family members], and he provided their names and approximate ages. He also claimed he had married in a ceremonial marriage in 2017, that [one child] passed away from complications associated with childbirth, they had a daughter in [year] and [another child] in [year] who was born after the applicant arrived in Australia and he provided their names and approximate ages. The applicant also claimed that after completing primary school in the area he completed secondary schooling in [Town 1] in [year], undertook 6 months of tertiary studies at [a named] college in Port Moresby (and explained at hearing that he studied [subject 1] and stayed with someone from his clan in Port Moresby) but was forced to withdraw because of the cost. He claims that after marrying he completed a 6-month course in [occupation 1] in [Town 2] but could not secure [occupation 1] work on completion so returned to work the family farm. In submissions at the review stage, he listed the crops they grew on the family farm including [product 1]. At hearing he claimed he built a house for his wife and children on the family’s land, which was near his parent’s house, and that his siblings also lived nearby on the famIly land. He explained the land they lived on had been inherited through the generations and that his father had a big [product 1 farm] and that that was how they were able to make a living. He explained they grew [product 1] and talked about some of the challenges in growing these crops including pests which stopped the [product 1] from producing fruit and the need to ensure the soil was not too damp.
In support of these claims the applicant has provided numerous historical and more recent photos showing him with his family including with his wife, his children, one with him on what appears to be a recent [phone] call with his children and wife, photos of his father including with the applicant’s children, his mother and of him as a young boy with his siblings and father. He has also provided some documentation which based on the content and dates appear to have been used as part of the applicant’s application for the seasonal worker’s scheme. In this regard a letter from a Councillor in “[Ward 1]”, [Town 1], Enga Province, dated [in] May 2022 states they have known the applicant since birth and that the applicant is a Christian from the [Tribe 1], [Ward 1], and had consulted him with regards to the seasonal workers scheme and that he had no hesitation in recommending the applicant. A PNG police clearance certificate dated in October 2022 shows the applicant has no criminal record, was born in [Town 1], and that his place of origin is [Village 1] [District 1] Enga Province. A letter dated [in] March 2024 from an acting Councillor “[Ward 1]” states the applicant’s father is in the [Tribe 1] and lives in the small village [Village 1]. The applicant has also provided a school certificate showing he completed secondary schooling in [year] in [Town 1] as claimed. At hearing he said he was a committed and very disciplined student which is reflected in the “high achiever” marks on his school certificate. In post hearing submission it was also noted that the applicant listed Enga Province as his place of residence in both his applications for a temporary work visa and temporary activity visa lodged on 15 December 2022 and 31 May 2023, respectively. Given the varied spelling of his home village, which is understandable given transliteration issues, this submission also provided the correct spelling of the applicant’s family village stating it was “[Village 1] in [Ward 1] of [District 1], Enga Province, PNG” as is reflected in the police clearance certificate.
There are several issues with the protection visa application in addition to its contents being at odds and often inconsistent with the applicant’s background claims and supporting documentation provided at the review state, for example, the applicant arrived in Australia in December 2022 although the application incorrectly states he arrived in July 2022, some details like addresses appear incomplete, and it appears to indicate he lived at an address in Hela Province in Port Moresby although Hela Province is some distance from Port Moresby and located in the rural Highlands as was noted in the post hearing submissions. Based on the applicant’s detailed evidence, including his spontaneous oral evidence at hearing elaborating on certain background details when questioned, and supporting documents, I accept the applicant is a Christian from [Village 1 variant], [Town 1], Enga Province [District 1] and the [Tribe 1], that he grew up with [number] siblings, attended schooling in [Town 1] finishing high school in [year], studied in Port Moresby for 6 months, married in 2017, has [specified children], undertook a short course in [occupation 1] and then returned to work on the family farm and large [product 1 farm] where he worked until he left PNG in December 2022. In light of these background claims which vary significantly from those detailed in the protection visa application and the other issues identified above with the application I am willing to accept the applicant’s claim that a man in Queensland filled out and lodged his protection visa application for $600 and that the applicant did not read or review it before it was lodged and the man who filled it out made up the contents which are inaccurate. The applicant has indicated he did not flee PNG in fear of harm in December 2022 which in the circumstances I accept.
The applicant’s main claim is that he fears being targeted or dragged into tribal violence just as 2 of his brothers who were recently killed in the violence were, on account of their father’s profile as a former pastor and current tribal and village leader and because he will inherit this leadership role in due course.
In an undated submission which appears to have been received by the Tribunal in early December 2023 (December 2023 statement) when the applicant lodged his application for review (at hearing the applicant explained he compiled this with the assistance of family and friends in PNG) the applicant claimed his home in Enga was destroyed by enemy tribes and his place was burned down [in] September 2023. He said that as a result of the fighting, homes, infrastructure and many lives had been lost in Enga, including the lives of young people like himself. He claimed that as his home had been destroyed his family including his wife, father, [and siblings] had to flee the area and settle elsewhere and that he had to send them money to help them in these circumstances. He said living like this was risky and would lead to poverty and that as their home had been destroyed, they were now displaced and considered refugees in their local society’s custom. He said displacement in turn led to a number of other issues such as mental health issues, financial issues and family responsibilities, among other things. He said he needed to work to be able to support his family financially as they were displaced. He provided images in his submission of what appear to be aerial shots of hills in his area on fire, with smoke rising, and bodies of people killed in the fighting. The applicant reiterated these claims in a statement dated in February 2024 which his representative appears to have assisted him with, stating that schools, homes, and health clinics had been destroyed and many tribesmen had lost their lives in the conflict. At hearing he said that the most recent fighting was adjacent to his land but affected his area and turned it into a battlefield and his property had been destroyed. The applicant also said that his [sister] had married a man from [Town 2] and so that was why the family were staying with her in that area after their homes were destroyed. He said his family were “ok” but that there was fear and that they stayed inside all the time.
In a paper provided by the applicant,[6] it states that PNG is a diverse nation of tribal societies organised on the basis of kinship with more than 800 distinctive, often mutually unintelligible languages and a community-based society each functioning on a basis of local custom, tradition, values and dissimilar governing systems. It reports PNG has several thousand communities. It reports that divisions created by language, custom and tradition have repeatedly resulted in on-going low scale tribal warfare with neighbouring communities, as Melanesian men, particularly leaders, reportedly suffer an inability to trust neighbours. Other more recent publications[7] report on the ongoing tribal fighting in the Highlands. They report tribal fighting is an ongoing issue for communities. There was an escalation of violence in Enga during the 2022 national election when dozens were killed and almost 90,000 people displaced. There were dozens of deaths between July and August 2023 as fighting raged between warring tribes in Enga Province. They report of government lockdowns in the region in September 2023 and local communities in the applicant’s district of [District 1] at that time calling on the government to establish police or defence force barracks in the area which was described at that time as a fighting zone. This is consistent with the applicant’s claim his home was destroyed around this time. The publications report that while the government does not tolerate or condone fighting, and new special police units have been created and laws enacted to tackle the violence, that the police are outgunned and are reported to be simply waiting for the tribes to calm down. It reports of a change to the way tribal violence is now done when compared with the past, with an increased reliance on high powered weapons. It notes villagers would not be able to hire gunman and purchase ammunition without outside support and that the police suspect people who own land in the area want to protect their private interests and that the authorities are investigating the source of the funding that is driving the conflict.
[6] Murray Prideaux and J. Cook, Australian & New Zealand Academy of Management, ‘Leadership in Papua New Guinea: Exploring context and barriers’, (2006) <
[7] ABC, ‘Police directed to use ‘lethal force’ in PNG as graphic video surfaces online in wake of tribal violence’, 23 August 2023; ABC, ‘Tribal fighting in PNG’s highlands has escalated into guerrilla warfare, leaving desperate villagers with nowhere to go’, 12 September 2023; Papua New Guinea Post-Courier, ‘Tribe wants police and army barracks’, 18 September 2023.
As noted above, I accept the applicant is from from [Village 1 variant], [Town 1], Enga Province [District 1] where he grew up, went to school, and worked, and had family there and had built his own home and farmed the family land to support himself and his family. Based on the applicant’s consistent and detailed evidence and the country information above I accept the applicant’s family’s land and homes were destroyed in tribal warfare in around September 2023 when there was an escalation of violence in their area and that his family have temporarily relocated to [Town 2] to live with his [sister] and that they are displaced.
The applicant claims that many years ago his parents worked as missionaries for the [Church 1] in [District 1 variant]. His father was a pastor at the church. As a pastor his father baptised children, built churches, and led worship. He claims that after 20 years as a pastor his father retired and became a tribal and community leader, is now [age] years of age, and that it is expected the applicant will follow in his footsteps inheriting a leadership role and on account of this and his father’s profile he faces an increased risk of harm from opposing tribes. He claims that when the fighting broke out in [a named location] his father went to the [other side] to try to resolve the dispute with the other leaders and prevent it from reaching [another location] where their village is located. However there were too many tribes involved and the fighting had escalated making it difficult and his father had to relocate to [Town 2] for his safety. The applicant submits that notwithstanding his age and that he does not encourage fighting, his father is a known tribal leader and that he would be a prized target for enemy tribes.
Much has been written about early Christian missionary work in Enga and in particular [Town 1], and the applicant’s claims about his father’s missionary work are consistent with these historical accounts.[8] In support of this claim the applicant has provided a number of photos of the applicant’s father including one of him as a younger man dressed in pants and shirt standing in front of an institutional looking building. He has also provided a photo claimed to be of his father being ordained. The man in this image looks like his father based on other photos provided of him as a young man. The photo shows the applicant’s father next to 3 other men standing in a row, his father is kneeling with 3 men facing him, 2 with their hands on the applicant’s father’s head and strongly resembles online images of Christian ordination.[9] The applicant has also provided a letter dated [in] March 2024 from an acting councillor in Enga which states that the applicant’s father is a natural leader, local church pastor, and has involved himself in peace initiatives, mediating household issues, community development, and road cleaning, among other things, and that he is one of their local leaders.
[8] The National, ‘Enga celebrates church’s 75 years’, 2 December 2022;Keith Jackson, Fr Jerry Bus & the Enga (21 February 2020) PNG attitude < (21 February 2020).
[9] Brandon Zimmerman and Rebecca Zimmerman, ‘A PNG Ordination’, on Plotinus in the jungle (22 February 2014)<
The applicant has made various submissions about males being the protectors of the family and said that while he does not agree with the violence he may have to fight or feel pressured to fight, and that he has helped his father with tribal matters in the past, been taught negotiation, and will inherit his father’s leadership position and is well known in the area. I acknowledge there are numerous tribal societies in PNG whose practices are varied, that patrilineal society is common in the Highlands, that they also practice “chiefly” or “big-man” methods to develop leaders and preserve the passing of leadership from father to son, among other things, and that leadership is also based on the individual’s status in the community in terms of wealth and money.[10] This is consistent with the applicant’s assertions at hearing when discussing this issue, that both inheritance and leadership skills were relevant to leadership roles. The paper noted above, which was published some 18 years ago now, also noted at that time that the practice of appointing leaders according to religious association was increasing in PNG as such leaders were considered more trustworthy, honest, and reliable, and therefore had less difficulty influencing followers. I also acknowledge that for male members of clans[11] there can be a sense of an obligation to fight to protect their land, family, and community, which the applicant alluded to when he said that if he ran away from the fighting, he may not be able to return or would have to meet other demands. The applicant is in his [age range], has not claimed to be a leader of the tribe, or a pastor, or to have fought in the past, and when asked to describe his own involvement in the tribe at hearing it was limited to attending gatherings and events and contributing to ideas and talking. I do not consider the applicant is himself a village or tribal or religious leader in the area. However on the evidence including the applicant’s consistent and detailed evidence and the supporting documents I am willing to accept as plausible that his parents were early missionaries in Enga Province, that his father was a pastor for some 20 years, and while now of advanced years, is a recognised local leader involved in peace initiatives such as mediation and community development. While the 2024 Councillor letter does not explicitly describe his father as a tribal leader, given the role of tribes as the organising unit of society in PNG this could be implied in the term local leader, and based on the publications noted above associating religion with leadership and influence, the applicant’s detailed evidence in his post hearing submission about his father’s attempt to resolve the tribal dispute, I consider it plausible that his father is a long standing tribal and community leader in the area.
[10] Murray Prideaux and J. Cook, Australian & New Zealand Academy of Management, ‘Leadership in Papua New Guinea: Exploring context and barriers’, (2006) < [11] Andrew Kobylinksi, Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea, Australian Institute of International Affairs (14 March 2022) <

At the review stage the applicant consistently claimed 2 of his brothers were killed in the tribal violence on account of his father’s and family’s profile. While he stated in his December 2023 statement that it was [other siblings] who were killed, at hearing he said this was an error and given his limited English and that he has said family and friends in PNG assisted him with compiling this statement I am willing to accept this was a minor error and I draw no adverse inference from this. The applicant has provided some detail in relation to his brothers’ claimed deaths. He claims one [brother] was killed while at school in October 2023. He has provided a photo of this brother when he was younger as well as a death certificate reporting that this brother was killed by riffle shot to the head [in] October 2023 while attending [a named] School as a student. There appears to be an official looking stamp on the death certificate for “[a named] hospital”, it is signed, the dates are consistent with the applicant’s claims, and there is nothing to indicate the certificate is not genuine. The applicant claims [another] brother was also killed while engaging in tribal warfare and on the battlefield in November 2023. He has said they have not been able to locate his body, but his death was confirmed by eyewitness accounts, and that he is therefore unable to provide documentary evidence of this brother’s death. He has provided a family photo of this claimed brother. He has also provided a 2024 letter from a Councillor in Enga province which attests to the killing of 2 of the applicant’s brothers last year in the tribal violence. This letter appears on what looks to be an official looking letterhead for “[Agency 1]”, is signed by the writer and there is nothing to indicate it is not genuine. I note country information discussed above[12] regarding the difficulties of obtaining identity documentation in PNG. I acknowledge country information[13] indicates that that some wontoks in public service roles sometimes feel pressured to assist locals who ask for favours and that these obligations may sometimes override rules or laws, however I consider that the Councillor’s letter is somewhat detailed and contains other information consistent with the applicant’s claims and the letter and its contents appear credible. The post hearing submission claims that both brothers died while fighting to protect their homeland as is custom, however, on the evidence, including the detail provided, and supporting documentation in particular the death certificate and Councillor letter I accept as plausible that the applicant’s younger brother was killed while attending school as a result of tribal violence in the area and that his [other] brother was later killed while fighting.
[12] Grant Walton and David Jackson, U4 Anti-Corruption Resources Centre, ‘Reciprocity networks, service delivery and corruption: The wontok system in Papua New Guinea’ (2020) < ; DFAT, 'DFAT Country Information Report. Papua New Guinea', 6 September 2022, 20220906090037; Pacific Community, ‘ Stat of the week: In Papua New Guinea only 13.4% of children aged under 5 had their birth registered with a civil authority’,(15 November 2021) <
[13] Gordon Nanau, ‘The Wantok system as a socio-economic and political network in Melanesia (2011) Vol.2 No.1 The Journal of Multicultural Society 31; Murray Prideaux and J. Cook, Australian & New Zealand Academy of Management, ‘Leadership in Papua New Guinea: Exploring context and barriers’, (2006) < Grant Walton and David Jackson, U4 Anti-Corruption Resources Centre, ‘Reciprocity networks, service delivery and corruption: The wontok system in Papua New Guinea’ (2020) <
At hearing I said that based on online reports[14] tribal violence had fluctuated in Enga in the past, as far back as 2012, that in 2021 thousands had been displaced due to fighting, and people were killed in 2022, and I noted that at these times the applicant was living in Enga and had not been targeted by enemy tribes at that time. The applicant said that this fighting was not in his place but happened in the nearby place and that it was only when he fled to Australia that the fighting happened in his area. In light of the reported escalation of violence in September 2023 in his particular area noted in the country information above I consider this plausible, and I am willing to accept this.
[14] Andrew Kobylinksi, Forgotten Conflicts 2022: Tribal Violence in Papua New Guinea, Australian Institute of International Affairs (14 March 2022) < VIDEO: Eighteen killed in tribal violence in PNG (ABC, 21 July 2022) <
I accept the applicant’s family home and land in Enga was destroyed in September 2023, his family were displaced and are currently living under a temporary arrangement with his sister in [Town 2]. While the applicant lived most of his life in Enga given his home has been destroyed, that he studied in [Town 2] in the past, and his family are living with his [sister] in [Town 2], I consider that if the applicant were to return to PNG, he would very likely return to [Town 2].
In 2022 DFAT[15] reported on the tribal violence, crime, and the lack of protection in PNG. It reported that tribal clashes and random killings of locals occurred in the Highlands Provinces in recent years including during the 2022 national election period. It reported tribal violence was particularly prevalent in the Highland regions (which includes Enga and [Town 2] in the Western Highlands). It reported police capacity and willingness to prevent and investigate tribal fighting was typically limited. While the full complement of police stood at around 5,500 only one quarter of these were fully effective as police officers. It noted police endure poor working and living conditions, low remuneration, have to assert themselves in violent environments often without weapons or protection, have clan/family obligations to meet, and are generally poorly trained. It also reported some were disinclined to act in cases of tribal violence because of sympathy for the alleged perpetrator. It reported the effectiveness of the police force was severely limited by resource and staffing constraints and that they were routinely restricted in their ability to investigate crimes due to transport limitations, including a lack of vehicles and fuel. DFAT also reported that the capacity of the police and other security forces to provide protection to vulnerable cohorts was typically severely limited. DFAT reported inter-tribal conflict often affected transmigrated populations in other parts of the country. It noted members of ethnic groups may continue their conflicts in other locations in which they relocate if members of an opposing tribe are present. It noted that sources reported for example, of a high school boy in Port Moresby being targeted by violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there, although provided no further detail regarding this boy’s background. It reported that for individuals who relocate elsewhere in PNG they are often recognised in their new home and this information will typically be communicated to their place of origin. DFAT assessed that those involved in inter-tribal conflicts faced a pattern of societal harassment or violence which may not be ameliorated by relocation to another part of PNG. DFAT also reported that those who relocate to Port Moresby face very high unemployment and very high levels of crime including tribal fighting.
[15] DFAT, 'DFAT Country Information Report. Papua New Guinea', 6 September 2022, 20220906090037.
The more recently published Human Rights Report by the US Department of State[16] reports on tribal violence, the lack of protection and displaced people in PNG. It reports of frequent tribal conflict in the Highland areas, mostly in Hela, Southern, and Enga Provinces. It states that the number of resulting deaths and internally displaced persons continues to rise due to the increased availability of modern weapons. It notes of efforts to combat the violence including the authorised use of lethal force and deployment of 120 troops to parts of Enga Province to secure state assets but notes there is a lack of law enforcement in the area. It reports that the government generally respects judicial independence and impartiality. It reports that between May and September 2023 in Enga, Hela and the Southern Highlands there were more than 300 deaths, about 25,700 students were unable to attend school, and about 557,800 persons had no or limited access to basic health services due to damaged facilities, a lack of staff (who fled the violence), disrupted supply chains and other effects of the violence. It notes of a 3-month lockdown in Enga in July 2023. It reports that displacement was generally protracted with families living in temporary situations for more than one year on average and that internally displaced people lacked access to land, basic services, and protection, and were often met with violence from host communities.
[16] US Department of State, '2023 Country Reports on Human Rights Practices - Papua New Guinea', , 22 April 2024, 20240423124947.
Other recent publications[17] report that on 19 February 2024, and despite the government’s measures to tackle the violence, dozens of people in Enga Province had been shot dead during an ambush near the town of Wabag. It reports that while the Highlands area has long struggled with violence the current violence was believed to be the worst seen in years and the result of an influx of illegal firearms. At hearing when I noted a report[18] that Enga had returned to relative normalcy with no renewed fighting the applicant essentially said that the situation was complex and unstable, and I note that reports of it returning to normalcy came very shortly after reports of a massacre. The post hearing submission also noted of a recent 3-month ceasefire signed by some tribes in Enga province but that despite this a young women was subsequently found brutally killed in Wapendamanda suggesting that while these developments are promising at this point in time the situation appears unsafe and unstable in the Highlands for the foreseeable future.[19]
[17] BBC, ‘Papua New Guinea ambush: dozens shot dead in Highlands region’, 19 February 2024; Papua New Guinea Post-Courier, ‘Wapendamanda massacre’, 20 February 2024; 10 News, ‘Tribal violence in Papua New Guinea kills 26 combatants and an unconfirmed number of bystanders’, 19 February 2024.
[18] RNZ, ‘No renewed fighting” in Enga Province – “troublemakers will be shot”, police chief says’, 21 February 2024.
[19] RNZ, ‘Warring tribes in Papua New Guinea agree to ‘completely end killings’, 14 March 2024; RNZ, ‘Ceasefire pauses three year PNG tribal war’, 23 March 2020; Miriam Zarriga, ‘Young woman found dead with face skinned in Enga in spite of ceasefire’, Asia Pacific Report (online), 18 March 2024 >
While the country information above indicates areas like Enga have been particularly affected, overall, it indicates protracted and prevalent tribal violence in the Highlands more broadly and that the area is unsafe and unstable. It reports the violence results in tribal clashes killing tribesmen as well as the random killing of locals. For those individuals involved or targeted in the tribal violence their relocating to another area may not reduce this risk as their relocation may become known to tribesmen in their original location and communicated to enemy tribesman in the area to which they have relocated who may then target them in the area of relocation. While the country information reports the government generally respects judicial independence and impartiality it overwhelmingly indicates the effectiveness of the police and security services is severely limited due a lack of resources including guns, vehicles, and fuel, as well as staffing constraints such as relatively low numbers and poor training and that their ability to protect vulnerable cohorts is severely limited. While the country information indicates this issue is particularly acute in the Highlands, it does not indicate that this issue does not affect other parts of PNG, such as Port Moresby which it reports suffers from very high levels of crime and tribal fighting. It reports that the tribal violence has resulted in a large number of people being internally displaced, like the applicant’s family, and that those who are internally displaced lack access to basic services including basic health services, land, protection, and are often met with violence from host communities.
Importantly in this matter it was only at the review stage that the applicant provided claims to fear harm on account of the tribal violence in PNG, that his father was a former pastor and community and tribal leader, that the applicant had 2 brothers who had been killed in the tribal violence last year, and a volume of supporting documentation. On the facts, I consider that the applicant is a member of a particular social group (PSG) comprising “male members of the [Tribe 1]”. As noted above[20] PNG is a diverse nation of tribal societies functioning on the basis of distinctive languages, local custom, tradition, values, and governing systems, where divisions created by these differences cause tribal warfare with neighbouring communities and that Highlanders in particular are reported to be aggressive people. I consider that male members of the [Tribe 1] (who are from Enga Province in the Highlands) form a cognisable group, that membership is a characteristic shared by each member, and is not fear-based. Consistent with country information[21] indicating tribal membership is inherited I consider the applicant’s tribal membership an innate and immutable characteristic. Based on the applicant’s particular profile, as a young male member of the [Tribe 1] from Enga whose parents were early missionaries and father was a pastor and is a long standing well-regarded community and tribal leader with a big [product 1 farm], and whose 2 brothers were killed in the tribal violence last year, I am satisfied that the applicant faces a small but real chance of serious harm at the hands of warring tribesman, namely a threat to his life or liberty, significant physical harassment and significant ill-treatment, and that that such treatment would be systematic and discriminatory and for the essential and significant reason of him being a male member of the [Tribe 1]; I accept the applicant faces a real chance of harm amounting to persecution within the meaning of s 5J(4) of the Act. While tribal violence is prevalent in the Highlands the country information above indicates that where an individual is a target of tribal violence, they may also be targeted by enemy tribesmen located in areas they relocate to and that the inability of authorities to protect vulnerable cohorts is country wide. I find that the harm relates to all areas of PNG. As the applicant’s membership of the tribe is innate and immutable there are no reasonable steps he may take to modify his behaviour so as to avoid a real chance of harm. I am satisfied the applicant has a well-founded fear of persecution within the meaning of s 5H(1)(a).
[20] Murray Prideaux and J. Cook, Australian & New Zealand Academy of Management, ‘Leadership in Papua New Guinea: Exploring context and barriers’, (2006) <
[21] Murray Prideaux and J. Cook, Australian & New Zealand Academy of Management, ‘Leadership in Papua New Guinea: Exploring context and barriers’, (2006) <
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Gabrielle Deal
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 2468

20 May 2024

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Immigration

Statutory Interpretation

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