2319784 (Refugee)

The applicant, a young Christian male from Enga Province in Papua New Guinea, sought a protection visa. He claimed to fear persecution due to escalating tribal violence in his home region, which had resulted in the destruction of his family's property and the deaths of two of his brothers. The applicant also asserted that he was expected to assume a leadership role within his tribe, placing him at further risk. The decision under review was made by the Tribunal.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically whether he was a refugee due to a well-founded fear of persecution. This required the court to consider if the applicant's fear of harm was for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if there was a real chance of persecution in all areas of Papua New Guinea. The court also had to determine if any available protection measures in Papua New Guinea were effective, and if the applicant could take reasonable steps to avoid the feared persecution.

The court reasoned that the applicant was a member of a particular social group comprising "male members of the [Tribe 1]". It found that membership in this tribe was an innate and immutable characteristic, distinguishing the group from society and being fundamental to the applicant's identity. Considering the applicant's profile, including his family's prominence and the recent deaths of his brothers, the court was satisfied that he faced a real chance of serious harm, amounting to persecution, for the essential and significant reason of his tribal membership. The court concluded that due to the pervasive and severe nature of tribal violence in Papua New Guinea, the limited effectiveness of state protection, and the risk of being targeted even in areas of relocation, harm was a real possibility in all areas of the country. Therefore, the applicant could not take reasonable steps to avoid this risk.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.