2403157 (Refugee)

[2024] AATA 3633

2403157 (Refugee) [2024] AATA 3633 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403157

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Sean Baker

DATE:29 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 May 2024 at 10:22am

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – tribal violence – uncle and brother killed and parents’ and other siblings’ whereabouts unknown – application completed by another person and claims at hearing significantly different – some fighting and ongoing tension but family members not killed or missing – brother and children living in home area – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, a citizen of Papua New Guinea (PNG), applied for the visa on 14 November 2023. The delegate refused to grant the visa on the basis that the applicant did not provide sufficient detail to make out their claims.

   CLAIMS AND EVIDENCE

3. The applicant is a [Age]-year-old man from [District], Southern Highlands, PNG. He was born and lived in [District]. He is a Christian. He farmed the family land until he came to Australia. He has worked in [workplaces] and as [an occupation] in Australia.

4. In his protection application, the applicant claimed that he had run away from PNG because the country was always in chaos. He got phone calls and saw in the media that his tribe and other tribes were fighting. This fighting extended to all parts of Enga province and also affected other provinces and many people were killed. His uncle and my brother were killed in that fight and he didn’t know where his parents and other siblings are now. He feared that he would be at risk of being killed if he returned.

5. The applicant provided a copy of his PNG passport to the Department.

6. He was requested to provide further information to the department pursuant to s 56 but did not do so.

7. To the tribunal the applicant provided a copy of the delegate’s decision. He did not provide any further information about his claims.

8. The applicant appeared before the Tribunal on 28 May 2024 via video to give evidence and present arguments.

9. At the hearing the applicant said that his application was completed with the help of a [Country] man, and that the man had just put anything down. His claims differed in key respects from those above. I have discussed this difference below.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant will be persecuted on return to PNG or, if not, whether there is a real risk he will suffer significant harm if removed from Australia to PNG. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

17. At the hearing the applicant explained that he had had to remain in Australia during Covid, he was not able to return to PNG. When the lockdowns were lifted, he had intended to return to PNG because his wife had divorced him and married another man and left their two eldest children with the applicant’s brother in [District]. He wished to return to see his children. However, he was frightened of returning.

18. He explained that around June/July last year an old feud with another tribe had led to conflict and his tribe had killed one of the people from the other tribe. On the same night, the other tribe had burned down some houses in his village. He confirmed that there had been no further conflict between the tribes. The applicant said that his tribe had paid compensation to the other tribe but that there was still tension.

19. I asked the applicant about the claim in his application form that his uncle and brother were killed in the fight and he didn’t know where his parents and other siblings are. He said that this was just what the [Country] person had written down. He confirmed that his uncle and brother had not been killed, in the tribal fight or otherwise. His parents had passed away but not from violence, and his siblings are all well and living in either [District], other parts of the Southern Highlands, or Port Moresby.

    Findings

20. I accept that the applicant was born and lived in [District], in the Southern Highlands. I accept that his two eldest children live there with his brother. I accept that his wife has divorced him. I accept that if he were to return to Papua New Guinea he would return to [District], where he has lived and where his children and brother live.

21. I accept that there was violence between the applicant’s tribe and another tribe in approximately June/July 2023 where someone from the other tribe was killed and some houses from the applicant’s village were burned down. I accept that the applicant’s tribe paid compensation to the other tribe. I accept that there is still tension between the tribes.

22. I do not accept that the applicant’s uncle and brother, or any other relative, were killed in the fight and I do not accept that the applicant does not know where his parents and other siblings are. The applicant was very clear that these were not his claims and had been inserted into his application by the person helping him.

23. I accept that there is a significant level of violence in parts of the highlands in PNG, most notably Enga province in the Northern Highlands.[1]

    [1] DFAT Country Information Report - Papua New Guinea, 6 September 2022; 2.28; Aljazeera News, ‘At least 64 killed in ‘largest’ tribal clashes in Papua New Guinea’ 19 February 2024; At least 64 killed in ‘largest’ tribal clashes in Papua New Guinea | Gun Violence News | Al Jazeera; ABC News, ‘How the funnelling of high-powered weapons into Papua New Guinea is making tribal violence deadlier’, 20 February 2024 the Guardian,’ Papua New Guinea killings: what’s behind the outbreak in tribal fighting?’ 29 August 2023, Papua New Guinea killings: what’s behind the outbreak in tribal fighting? | Pacific islands | The Guardian.

    Is there a real chance the applicant will suffer persecution on return to Papua New Guinea?

24. I find that if the applicant returned to [District] he would live with his brother and two eldest children. I find that he would be able to support himself by farming his family’s land as he has done in the past, although I accept that growth in the population means there is less land to farm than there was.

25. I accept that there was tribal violence in his village in June/July last year, but there has been no violence since then, and the applicant said that prior to this incident of violence it had been several generations since there had been conflict between his tribe and the opposing tribe.

26. I accept that there may have been tension between the applicant’s tribe and the opposing tribe since the incidents of June/July last year, but there has not been further violence. The applicant’s tribe has paid compensation. Whilst there are a great number of reports about the current tribal violence in the Northern Highlands, there is little coverage of the Southern Highlands, with reports of widespread violence in the Southern Highlands dating back to 2018 when a state of emergency was declared in relation to election related violence.[2] I accept that this does not indicate that there are no incidents of tribal violence in the Southern Highlands, I accept the applicant’s evidence that his tribe killed someone from the opposing tribe but that this was not reported in the news. I accept that 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.[3] I accept that there is a level of violence in the Highlands, including the Southern Highlands to which the applicant will accepted return. However, as accepted above, in the applicant’s village there was a killing of a member of the opposing tribe, the burning of houses almost a year ago, but since then there has not been instances of conflict or violence, and there has been the payment of compensation. Whilst I accept that there may still be tension as the applicant says, I consider that there has been a considerable period of time since the killing and burning of the houses. When I raised this with the applicant, he said that he was worried that the violence could flare up at any time. I have had regard to this, but I am not convinced. It has been a considerable period since the violence, there has been the payment of compensation. When considered with the fact that the applicant was not involved in that violence, and that his family members were not harmed (although I accept one of his brother’s houses may have been burned in June/July last year), I find that all of the information indicates there is no real chance the applicant will be harmed on return to [District], now or in the reasonably foreseeable future.

    [2] DFAT Country Information Report - Papua New Guinea, 6 September 2022; 2.21.

    [3] DFAT Country Information Report - Papua New Guinea, 6 September 2022; 2.28.

27. I find that there is no real chance, that is, one that is not remote, that the applicant will suffer serious harm from people from the opposing tribe or anyone else for any reason if he returns to [District] now or in the reasonably foreseeable future.

28. 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).

    Is there a real risk the applicant will suffer significant harm if he is removed from Australia to Papua New Guinea?

29. The real risk standard is the same as the real chance. I have found above on all of the information before me that there is no real chance of the applicant suffering serious harm on return. For the reasons set out above and on those findings, I find that there is no real risk that the applicant will suffer significant harm if he is removed from Australia to PNG.

30. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

31. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Sean Baker
    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.

    …