2401532 (Refugee)

The applicant, a male member of the Sau Clan and Lungupini Tribe from the Southern Highlands of Papua New Guinea, sought a protection visa. He claimed a well-founded fear of persecution and serious harm upon return due to ongoing tribal conflict in his home region. The dispute concerned whether Australia had protection obligations towards him under the Migration Act 1958 (Cth). The matter was heard by Victoria Price, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically under section 36(2)(a) of the Migration Act 1958 (Cth), which requires the Minister to be satisfied that Australia has protection obligations because the person is a refugee. This involved determining if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if there was a real chance of such persecution in all areas of Papua New Guinea.

The Tribunal considered the applicant's claims, including his membership in a particular social group (male members of his clan and tribe) and the escalating tribal conflict in the Southern Highlands. It also took into account the oral evidence of Detective Senior Sergeant [A], who corroborated the applicant's account and expressed a genuine belief that the applicant would be killed or seriously harmed if he returned. The Tribunal found that section 423A of the Act, which allows for adverse inferences from new evidence without reasonable explanation, did not apply as there were reasonable explanations for the applicant's presentation of new claims and evidence at the Tribunal stage. The Tribunal concluded that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a).

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