2404931 (Refugee)

[2024] AATA 3971

2404931 (Refugee) [2024] AATA 3971 (9 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Patrick James O'Connor

CASE NUMBER:  2404931

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Sean Baker

DATE:9 July 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 09 July 2024 at 5:00pm

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – particular social group – young male – race – tribal membership – forced conscription in tribal violence – exile from the village – fear of killing – internal relocation – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 March 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 23 August 2023. The delegate refused to grant the visa on the basis that they did not accept exile would lead to serious or significant harm.

   Claims

   Provided to the Department

3. The applicant is [an age]-year-old man from [District 1], Enga Province PNG. He says he is of the Papua New Guinean ethnic group and is a seventh-day Adventist.

4. In his application he said that he had not experienced harm, but he feared returning now because he feared he would be forced to fight in tribal wars that have begun in his area since he came to Australia. He feared if he refused to fight, he would be hurt or killed. He said the authorities would not protect him and that he could not relocate because they will still find him and harm him anywhere in PNG.

5. The applicant provided several screenshots from social media relating to the tribal violence.

6. In response to a s 56 notice for more information, the applicant’s then representative provided a submission which stated, in summary:

   ·       The applicant claims fear of harm based on their ethnicity as a member of the [Tribe 1] and as a male who will be forced to fight in the tribal fights.

   ·       The applicant belongs to [Tribe 1] from [Village 1], [District 1], Enga.

   ·       The applicant and their ex-wife divorced in 2018. The applicant has [children] who live with his uncle and aunt.

   ·       The tribal fights between [Tribe 1] and other tribes started many years ago and have been ongoing.

   ·       [Two named tribes] are the most notorious tribes.

   ·       The applicant is expected to continue the fight until victory. The applicant is unaware of the actual reason of the fights.

   ·       The difference between the fights during the applicant’s father’s generation and now is the usage of military issued weapons.

   ·       In around July 2022, during the elections, the tribal fights escalated the fights in the applicant’s district. The fights further intensified in mid-2023.

   ·       The tribal fights are prevalent in [District 1] in Enga.

   ·       Many lives were lost in a barbaric style of killing and properties were destroyed.

   ·       All men and boys have to join the fights.

   ·       If one male sibling in a family joins the fights, the other has to join too. If someone refuses, they will be exiled from the village.

   ·       The applicant’s cousin and uncle have joined the fights.

   ·       One of the relatives and family friends who joined the fights were killed in 2023.

   ·       The applicant has not taken part in the tribal fights before. They have been taught bows and arrows, but they have not practised them.

   ·       Before coming to Australia, the tribal fights were not as serious which is why the applicant was able to live without having to join the fights. Now the situation has changed, and the fights have now turned into a war. If the applicant returns to PNG, they will have to join the fights and could be killed in a deadly fight.

   ·       After arriving in Australia, the applicant initially planned to stay temporarily and return after finishing their work.

   ·       The applicant believes if they returned, they would be an easy target due to their profile as someone who was selected to be part of the pacific Australia labour mobility scheme to work in Australia.

   ·       The applicant cannot relocate as other areas of PNG are also unsafe.

   ·       The authorities are unable to help and there is no one who can protect the applicant.

7. In addition to this submission, the following documents were provided in support of the applicant’s claims for protection:

   ·       Applicant’s National Identity Card

   ·       Applicant’s Birth Certificate

   ·       Statutory Declaration Attachments (Driver’s licence and Screenshots)

   ·      PNG Country Information Report

8. In addition to the claims raised in the statutory declaration, the following claim was also raised in the legal submission:

   ·       The applicant will be targeted by the enemy tribal groups because he could be considered as someone who supplies weapons to their group to contribute to the fights.

9. The applicant was interviewed by the delegate, at that interview the applicant provided evidence broadly consistent with the above claims.

10. The delegate accepted that the applicant is a member of the [Tribe 1] and belongs to [Village 1], [District 1], Enga province and that he fears forced conscription to join tribal fights, but did not accept that he fears harm based on ethnicity as a member of the [Tribe 1] from the Enga region, as a wealthy person, or as someone who supplies weapons to their group to contribute to the fights.

11. The delegate found if the applicant were exiled from his village this would not amount to serious or significant harm.

    Provided to the Tribunal

12. The applicant provided a copy of the delegate’s decision.

13. On 27 June the applicant provided a Statutory declaration, declared 23 May 2024, Legal submissions, a country information report, and a Witness statement from [Mr A], [a manager in] Enga Province.

14. The applicant appeared before the Tribunal on 5 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The applicant was represented in relation to the review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for a protection visa

15. 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.

16. 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.

17. 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).

18. 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.

19. 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

20. 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

21. The issue in this case is whether there is a real chance the applicant will suffer persecution on return to PNG or, if not, whether there is a real risk he will suffer significant harm if he is removed from Australia to PNG. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

22. The applicant provided evidence at the hearing consistent with his above claims. his witness, [Mr A], also gave evidence consistent with those claims.

23. On the basis of the information the applicant has provided, including his testimony, his identity documents, and the evidence of [Mr A], and as did the delegate, I accept that the applicant is a member of the [Tribe 1] and belongs to [Village 1], [District 1], Enga province. I also accept that the applicant has not previously taken part in inter-tribal conflict and wishes not to take part, now and in the future on the basis of his testimony. I accept that his uncle and cousin have taken part and between them have been responsible for the deaths of people from opposing tribes.

24. The country information supports the applicant’s claims that the Highlands, specifically Enga Province and the districts of [District 1] and [District 2] have seen an increase in violence since the elections in mid-2022 until the present, with the worst massacre on record in PNGs history occurring in Enga province in February 2024.[1] Inter-tribal violence can occur across PNG but is particularly acute in the Highlands.[2] Estimates of deaths in recent fighting are over two hundred fatalities in 2023, a sharp increase from the previous period,[3] and the ICRC reported that there were approximately 30,000 people displaced by communal violence in Enga, Hela and Southern Highlands provinces in 2021.[4] DFAT reports that land disputes are a common catalyst for unrest, with some incidents being ‘payback’ for previous incidents, and that ‘whilst inter-tribal conflict has historically occurred, especially in the Highlands region, observers suggest that such violence has become markedly worse in the last few years due to the increasing prevalence of high-powered firearms, the willingness to target the elderly, women and children, and the fact that conflict is less governed by customary law than in the past.’[5] DFAT goes on to state that inter-tribal fighting often results in the destruction of communal property and services and in substantial numbers of internally displaced persons.[6]

    [1] ACLED, Q&A: The Worsening Trend of Violence in Papua New Guinea, 27 February 2024, BBC News, Papua New Guinea ambush: Dozens shot dead in Highlands region, 19 February 2024,

    [2] DFAT Country Information Report Papua New Guinea, 6 September 2022, 2.27 – 2.32.

    [3] ACLED, Q&A: The Worsening Trend of Violence in Papua New Guinea, 27 February 2024, DFAT Country Information Report Papua New Guinea, 6 September 2022, 2.28.

    [5] DFAT Country Information Report Papua New Guinea, 6 September 2022, 2.29.

    [6] DFAT Country Information Report Papua New Guinea, 6 September 2022, 2.29.

I accept that if the applicant were to return to [Village 1], [District 1], he would face a real chance of harm on the basis of his membership of his tribe, primarily from people of tribes opposing his tribe, but also from his own tribe when he refused to take part in inter-tribal conflict. this is because I accept the country information which demonstrates that there is at this moment a high level of inter-tribal violence in the applicant’s district, the willingness to target all those from tribes, not just combatants, the potential for violence from ‘payback’. The information and what I have accepted of the applicant’s circumstances above therefore establishes that if the applicant returned to his home area now or in the reasonably foreseeable future, he would face a real chance of harm in inter-tribal violence.

I further find that this harm would constitute serious harm, with reports of significant deaths as well as serious injuries, and the use of high-powered weapons increasingly in these conflicts, I find the applicant face a real chance of serious harm including death or significant physical ill-treatment. I find that the reasons for the harm include the applicant’s membership of his tribe, which can be understood either as a component of race/ethnicity or as membership of a particular social group in PNG society, and that, given the violence is inter-tribal and pits people against each other exactly for the reason of their tribal/kin affiliation, that this an essential and significant reason for the harm. The harm is systematic and discriminatory because it is targeted at the applicant’s tribe due to the land disputes, election related disputes and payback from rival tribes which have motivated the inter-tribal violence in recent times.

The question arises as to whether the harm relates to all areas of PNG for the purposes of s 5J(1)(c). the DFAT advice makes clear that:

Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there.[7]

[7] DFAT Country Information Report Papua New Guinea, 6 September 2022, 2.31.See also 5.15 – 5.16.

It is also noted that large numbers of tribespeople from the highlands have relocated more recently to Port Moresby and other urban areas. [8] I find that if the applicant were to relocate to Port Moresby, Lae, or Madang, he would continue to face a real chance of harm for reasons of the inter-tribal conflict, because large numbers of tribespeople from the highlands, including from opposing tribes, have relocated to these urban centres, and the information from DFAT is very clear that inter-tribal conflicts often affect transmigrated populations. The applicant would be vulnerable given he has few wantok in other parts of PNG – he claimed, and I accept, that he has only the wife of his uncle, his uncle having passed away, in Port Moresby. He would be additionally vulnerable because he claimed, and I accept, that were he to relocate to one of these urban areas his young children would relocate with him, and he would be responsible for finding accommodation and care for them as well as himself. In this context, the applicant would, I find, be at very significant risk of being targeted for payback by opposing tribespeople for harm on the basis of his membership of his tribe.

[8] ACLED, Q&A: The Worsening Trend of Violence in Papua New Guinea, 27 February 2024, >

The country information makes clear that the effectiveness of the RPNGC is severely limited by resource and staffing constraints.[9] This leads me to find that the protection available to the applicant from the PNG authorities is neither accessible nor durable.

[9] DFAT Country Information Report Papua New Guinea, 6 September 2022, 5.3 – 5.6.

I have considered whether the applicant can modify his behaviour so as to avoid a real chance of persecution for the purposes of s5J(3). The delegate considered that the applicant could return to his home area and refuse to fight in inter-tribal violence. The delegate accepted that this would lead to the applicant being exiled from his tribe but did not accept that this would lead to serious or significant harm. I have considered the country information and I have come to a different view. If the applicant were to refuse to fight, then on his evidence he would be exiled. He would not be able to live in surrounding villages, given that some of these villages are in opposition to his tribe, and others are allied to his tribe and would enforce the exile. It is clear from country information that in this situation, the applicant would relocate to live in Port Moresby or another urban area. On doing this, he would be in the situation described above, only would lack any protection that fellow tribespeople from his tribe who had also relocated to one of these urban centres might afford. I find therefore that the applicant cannot modify his behaviour by either choosing to be exiled or relocating, because these behaviour modifications would not avoid the real chance of persecution.

On the basis of my findings above, I find that there is a real chance, that is, one that is not remote or insubstantial, that if the applicant returns to PNG now or in the reasonably foreseeable future, he will face persecution for reasons of his ethnicity/membership of a particular social group of his tribe.

Conclusion

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.

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.

…