2407207 (Refugee)

2407207 (Refugee) [2024] AATA 4153 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2407207

COUNTRY OF REFERENCE: Papua New Guinea
MEMBER:Jessica Edis
DATE:4 September 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 September 2024 at 2:33pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – race – tribal violence – political instability – employment – fear of killing – fear of detention – economic conditions – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 427, 499
Migration Regulations 1994, Schedule 2
CASES
A v Minister for Immigration & Ethnic Affairs [1997] HCA 4
BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; 241 FCR 150
Chan v MIEA (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
OVERVIEW OF VISA APPLICATION AND REVIEW PROCEEDINGS
The applicant is [an age]-year-old single man who was born in [Town 1], Papua New Guinea (PNG). The applicant arrived in Australia [in] February 2020 on a Subclass 403 visa issued as part of the Pacific Australia Labour Mobility (PALM) scheme.
The visa application
He applied for a Permanent Protection (Class XA) (Subclass 866) visa on 1 September 2023 via an IMMI Account. He uploaded his identity documents together with photos in support of the protection claims he had made on the application form. In summary, he said he could not return to PNG because of his membership of a specific tribe and the prospect of being seriously harmed or killed due to ongoing fighting involving his tribe.
On 25 December 2023, in response to a request issued by the Department, the applicant provided additional details in support of his claims, including about the death of his brother during a tribal attack in July 2015 which took place in the Western Highlands of PNG. The applicant supplied further evidence too, in the form of photos and newspaper articles.
The applicant was interviewed by a case officer about his claims on 6 March 2024. I have listened to a recording of that interview. The audio quality and overall communication were very poor between the applicant and the case officer. There were numerous occasions during the interview when the applicant and case officer either misheard or misunderstood each other, which led to confusion and inconsistencies. I have not relied on the interview in assessing the applicant’s case because I consider it would be unfair on him if I did so.
On 13 March 2024 the protection visa application was refused. The applicant’s tribal identity was accepted by the delegate. But the delegate determined that the applicant had not been directly targeted or harmed as a result of his tribal identity or any tribal fighting, nor had he been personally involved in or a part of any conflict. In effect, the delegate was not satisfied there was a real chance or real risk the applicant would be subjected to serious or significant harm if he returned to PNG and, on that basis, he did not meet the protection visa criteria.
The review proceedings
The applicant sought to have the delegate’s decision to refuse the visa reviewed by the Tribunal. He applied to the Tribunal on 4 April 2024.
The applicant was invited to attend a Tribunal hearing scheduled before me on 24 May 2024 to give evidence and present arguments. He attended the hearing in person. He was self-represented. He had requested a Tok Pisin interpreter, but none was available. As it turns out, the applicant spoke fluent English. There were no communication issues.
Consistent with the claims he had made to the Department, the applicant gave evidence at the hearing about the circumstances of the tribal violence in PNG. Among other matters, he said his life was at risk if he returned to PNG because of the enemy tribes hunting his family.
After the hearing, the applicant was invited to provide submissions pursuant to s 424A of the Act about information which was adverse to his case and might be the reason, or part of the reason, for affirming the decision under review. He responded to that invitation in writing.
The applicant attended a second hearing scheduled before me on 20 June 2024 for the purposes of clarifying some of the post-hearing information he had provided to the Tribunal. On this occasion, he appeared via video link. Again, there were no communication difficulties.
After the second hearing, the Tribunal emailed the applicant and invited him to confirm in writing if he intended to provide any additional evidentiary material in support of his case. The applicant replied to the Tribunal via email on 1 July 2024, annexing 3 letters (each of which were written by him) containing information that he wanted me to consider.
In one of the letters, the applicant provided further particulars about the death of his brother in July 2015. In another of the letters, the applicant wrote in general terms about the economic and political situation in PNG and how that made him feel ‘uncertain about [his] future there’, in addition to the ‘ongoing [tribal] conflict’. In the third letter, the applicant outlined his attempts to secure legal representation and/or legal assistance with the Tribunal proceedings. This was a matter that he had raised with me at the hearing, being that he had been trying to engage a lawyer to help him. He indicated in his letter that he was waiting for a response from [a named agency] and would keep the Tribunal informed of developments.
Legal representation
The applicant contacted the Tribunal about the issue of legal representation over the course of several weeks subsequent to the hearings. Firstly, he rang the Registry on 12 July 2024 to say he had just found someone to represent him, and they would be making submissions on his behalf. However, via email on 23 July 2024, he wrote again to say he had not obtained legal assistance after all, he had not been successful in respect of any ‘legal aid’ services, and he could not afford a private lawyer. In response to that letter, the Tribunal sent an email to the applicant to inform him that a decision would be made in his case within the next month.
On 5 August 2024, the applicant rang the Registry again and enquired if he could be given more time to seek legal representation. The Tribunal officer instructed the applicant to put his request in writing. On 6 August 2024, the applicant emailed the Registry to say that he had not been able to secure representation due to financial constraints but that he was seeking to raise the necessary funds by selling some of his personal belongings. He concluded his email as follows:
Without legal assistance, the success of my visa application hangs in the balance. It is crucial for me to have the support and expertise of a legal representative to navigate the complexities of the legal process and advocate for a positive outcome.
My unwavering determination to secure legal representation stems from a deep-rooted desire to fight for a better future for myself and my family. Despite the hardships caused by the economic conditions in my home country, I am committed to pursuing a positive resolution and ensuring a brighter path forward.
I respectfully request an extension of two to three weeks to gather the necessary resources to engage legal representation. This additional time is essential for me to prepare adequately and present my case with the best possible chance of success.
The applicant was given until 23 August 2024 to lodge legal submissions prepared by a representative. The applicant did not file any legal submissions or engage a representative.
The applicant’s final email to the Registry, dated 26 August 2024, reads as follows:
I hope this message finds you well. Firstly, I would like to express my gratitude for granting me the extension I requested to secure legal representation for the submission. Despite my efforts to engage various law firms, I have encountered challenges in finding affordable assistance. Some firms offered their services at a prohibitive cost, making it difficult for me to proceed.
I currently face a dilemma regarding my return to my home country due to personal safety concerns stemming from threats within my family and village. Furthermore, the political instability in my country, marked by impending government changes and soon the widespread protests, raises significant uncertainties about the future. The prevailing law and order issues, along with economic hardships such as skyrocketing prices and increased criminal activities, exacerbate the challenges faced by individuals like myself.
Returning to my home country poses grave risks to my well-being, both physically and mentally. The prospect of detention in such circumstances would be detrimental to my health, particularly considering my responsibilities towards supporting my parents financially. The socio-political climate in my homeland makes job prospects bleak, and the escalating risks to personal safety inhibit the freedom to explore employment opportunities.
In light of these circumstances, I humbly seek your assistance in exploring alternative pathways that align with my aspirations. I strongly believe in utilizing my skills and dedication to contribute meaningfully to Australian society, particularly in remote and underserved areas. If a certain visa arrangement that enables individuals to partake in humanitarian initiatives, such as assisting those in need and supporting community development efforts, resonates with my desire to make a positive impact.
As a young individual with ambitious goals, I am eager to collaborate with the government in initiatives that promote social welfare and community development. I am committed to working diligently to not only enhance the Australian community but also to fulfill my familial responsibilities.
I appreciate your understanding and consideration of my situation. While I acknowledge the constraints concerning legal representation, I remain steadfast in my belief that a compassionate approach to my circumstances can pave the way for a brighter future. I trust in the guiding principles of faith and hope for a favourable outcome, with the belief that collective efforts can lead to transformative change.
While I am sympathetic to the applicant’s situation, and his desire for professional guidance and support, I am mindful of the Tribunal’s objective in carrying out its functions – being that the review process ought to be fair, just, economical, informal, and quick[1] – as well as the fact that a person appearing before the Tribunal to give evidence is not entitled to be represented by any other person.[2] It also goes without saying that it is not within my remit to provide the applicant with assistance or advice about alternative visa pathways.
[1] Per s 2A of the Administrative Appeals Tribunal Act 1975 (Cth).
[2] Per s 427(6)(a) of the Migration Act 1958 (Cth).
In summary, the applicant appeared at each of the hearings as a courteous, sharp, and determined individual. He was polite, well-dressed, and well-spoken. There were no comprehension issues, and he expounded his claims in an articulate manner. His written correspondence with the Tribunal and the Department has been consistently intelligible, albeit somewhat repetitive.
I afforded the applicant ample time to secure a legal representative but, at the end of the day, I do not have any concerns in connection with him having been self-represented throughout the review proceedings. Accordingly, I will proceed to determine his case and set out my statement of decision and reasons below.
CRITERIA FOR A PROTECTION VISA
An overview of the protection visa criteria was explained to the applicant at the outset of the first Tribunal hearing to ensure that he had a basic understanding of the legal framework applicable to his case.
The criteria for a protection visa are found in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth).[3] 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 because they are a refugee (per s 36(2)(a)); or entitled to ‘complementary protection’ (per s 36(2)(aa)); or a member of the same family unit as such a person and that person holds a protection visa of the same class (per s 36(2)(b) or (c)).
[3] The key provisions are extracted in full and attached to this statement of decision.
Refugee criterion
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) of the Act.
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: s 5J(1)(a); and
·there is a real chance they would be persecuted for one or more of those reasons: s 5J(1)(b); and
·the real chance of persecution relates to all areas of the relevant country: s 5J(1)(c).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), then the reason(s) must be the essential and significant reason(s) for the persecution: s 5J(4)(a).[4] Further, the persecution must involve:
·serious harm to the person: s 5J(4)(b); and
·systematic and discriminatory conduct: s 5J(4)(c).
[4] That is: race, religion, nationality, membership of a particular social group, or political opinion.
Complementary protection criterion
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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).[5]
[5] The definition of ‘significant harm’ under s 36(2A) is exhaustive, per s 5(1) of the Act.
Pursuant to s 36(2A), a person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Pursuant to s 36(2B), there is taken not to be a real risk that an applicant will suffer significant harm in a country if:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; or
·the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or
·the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
Mandatory considerations
Section 499 of the Act empowers the Minister to give directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Relevantly, Ministerial Direction No.84 (MD 84), made under s 499 of the Act, concerns the consideration of protection visa applications.
In accordance with MD 84, I am required to take account of the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’ and to consider country information reports prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for assessing protection status claims. Relevantly, DFAT has published a Country Information Report on 6 September 2022 about PNG (the DFAT Report).
OUTLINE OF EVIDENCE
The applicant’s identity documents
The applicant has supplied the following identity documents in the course of making his protection visa application:
·a PNG passport issued in Port Moresby [in] 2019;
·a Certificate of Birth Entry issued by the Registrar in [Town 1] [in] October 2017;
·a PNG driver’s licence with an expiry date [in] March 2025; and
·a [School 1] attainment certificate dated [date].
I have no reason to believe that these documents are not genuine copies or otherwise invalid. On that basis, I find he is a citizen of PNG. I also find, specifically, that he:
·was born in [Town 1] [in] Madang Province, situated on PNG’s east coast;
·obtained his Certificate of Birth Entry and his driver’s licence from registries which were based in [Town 1]; and
·obtained his passport from a government authority based in Port Moresby.
The applicant’s protection claims
The applicant has given evidence about and, in support of, his protection claims in a serial manner and a variety of ways. The starting point was the visa application form completed on his IMMI Account. Thereafter he provided further information via a written statement and letters addressed to the Department and the Tribunal, together with oral evidence in response to questions put to him at interview and the hearings. He has also provided various documentary materials.
The applicant’s evidence and the relevant country information are outlined below.[6]
[6] The information provided by the applicant during the Department’s interview on 6 March 2024 is not summarised because I do not intend to rely on it, as noted at [5] above.
The visa application: 1 September 2023
On the visa application form dated 1 September 2023, the applicant stated:
·In answer to the question why he left PNG:
In my country, job opportunities is limited, even University graduates were still struggling to find job.
However, I was very fortunate to be sponsored to come work in Australia. I left my country to come work here in Australia mainly because to financially support my family.
·He had experienced harm in PNG.
·In terms of the details of that harm, his village had been burned and his relatives had been shot and killed at the hands of some brainless people due to political (tribal) differences. Hospitals and other important service infrastructure, such as a school, were burned.
·He had sought help in PNG after the harm.
·In terms of the details of the help that he sought, the police and other authorities ‘fear to control every tribal fight’ in PNG, and because people were using high-powered guns and even drones to hunt and kill their enemies, the law enforcers cannot help.
·He had tried to move to another part of PNG.
·In terms of the details as to where he moved and what happened, he did not specify. Rather, he said land is a very important asset in PNG and ‘boys are to remain to fight and to protect their lands without anymore other choices of their own’. He claimed that if he were to go back, he would have no choice but to join the fight or otherwise be killed by his own tribesmen.
·He thinks it is not safe for him to go back to PNG because the fighting takes place in the towns and cities, and people are walking around with weapons looking and hunting for whoever belongs to the particular tribe or group they are after.
·He anticipates he ‘can be killed anytime and anywhere’ in PNG by his tribal enemies; he rated his chances of survival at 5 to 10% because he would need to move around to look for jobs, food, and friends to socialise with.
·He does not think the authorities can protect him, ‘corruption is at its peak’, and PNG police officers and authorities were charged for crimes.
·He cannot relocate to an area where he would not be harmed, because ‘it happens everywhere in PNG’. He repeated:
[W]e can't move because our enemies are everywhere and could possibly attack anytime, anywhere.

The applicant uploaded 3 photos to his IMMI Account in support of his claims. They depict:
·Young children in a rural setting with an inset picture of a series of dead bodies in a row, wrapped in plastic and attached to makeshift stretchers.
·An enlarged version of the inset picture of 5 dead bodies wrapped in plastic and attached to makeshift stretchers lying to the side of a rural, unsealed road.
·A dozen or so young men, in a rural setting, walking in a line, armed with rifles.
The applicant named the photos on the IMMI Account as ‘relatives losing both parents’ and ‘family members heading to fight’.
The applicant’s response to the Department’s request: 25 December 2023
On 20 November 2023, the applicant was issued with a request for more information by the Department in relation to his visa application.
He was sent a checklist which sought:
·details about matters which had been entirely omitted from the visa application form (such as his family composition, his employment history and his address history); and
·more comprehensive, specific information in support of his protection claims.
The request also asked for an explanation why the applicant did not apply for a protection visa till more than 3 years after arriving in Australia and, separately, whether he could safely reside in places such as Port Moresby, Lae, Arawa or Mt Hagen to escape tribal violence.
The applicant emailed a detailed response to the Department on 25 December 2023. In summary, he wrote as follows:
·Each of his parents was born in the Western Highlands Province. His father is from a village called [Village 1]; his mother is from a village called [Village 2].
·There were ‘only two […] in the family’: his brother [Brother A] and himself, both born in [Town 1]. [Brother A] was born in [year].
·He is from the [Tribe 1] tribe, whose home village is [Village 1], in the [named] District.
·The [Tribe 1] tribe is fighting with the [Tribe 2] tribe which is based in the nearby village of [Village 3], in Enga Province. The [Tribe 1] and [Tribe 2] tribes share a common boundary. Their fight has been going for [many] years, involving loss of life and property damage, and will never end.
·[Brother A] was shot and speared during a tribal attack on [Village 1] village; he later died in hospital [in] July 2015. The applicant lost 5 other family members in that attack.
·The attack was carried out by the [Tribe 2] tribe at 3 or 4 in the morning. The police were not able to provide help because the village is remotely located, only accessible by helicopter.
·The applicant said of the attack [in] July 2015: ‘we lost everything our families, houses, gardens, aid post, schools, and many important things that supports life’.
·The applicant was in [Town 1] when the attack took place. His father received a call from a person in the Western Highlands who warned him to take his family and go somewhere. They stayed in a friend’s office in [Town 1] for safety for 3 nights and [in] July 2015, they departed by plane for Port Moresby.
·They stayed with his [Aunt] at [Settlement 1] in Port Moresby, but they did not live peacefully because they ‘received threats everywhere in Port Moresby’ and moved around ‘from places to places every time’.
·The applicant’s father sent him back to [Town 1] to stay with his friends, due to his health condition. He lived in [Town 1] from September to November 2015.
·Both of his parents are still alive to date. They currently reside in a settlement in Port Moresby called [Settlement 2]. He described them as being in ‘hiding’ and said he is ‘the only one supporting them’, even though he is not working in Australia.
·His life is not safe in PNG because there is a 90% chance that he will be killed by anyone from his enemy tribe at any time. He would be in danger because his enemies believe that [his] cousins from his family killed [number] men from their tribe and, for that reason, ‘their main target is [his] close families including [him] too’.
·He specifically cannot return to [Town 1] because the road links between the Highlands provinces and Morobe Province mean that people migrate easily to [Town 1], and 50% of the population in [Town 1] are from the highlands.
·He cannot return to [Town 1] – or live in any other province in PNG – because, in effect, the chances of him being killed will be very high no matter where he lives. Deaths happen everywhere in PNG because of tribal fights. People from the provinces live in the towns and cities, armed with machetes, guns and other dangerous weapons.
·He would be forced to join the tribal fight because it is a traditional and cultural law, passed down from generation to generation, enforced by the tribal leader. He has a responsibility to protect his land and, if he refused to do so, then his own tribe would see him as a soft-hearted person.
·On the topic of his work history in PNG, the applicant explained he finished school in [year], and then he moved around a lot in 2015 due to the tribal fighting and therefore did ‘nothing really […] in terms of [a] job’.
·In 2016, he had a major [medical procedure] and was in hospital for almost 4 months. The surgery ‘grounded [his] time’ seeking employment until he arranged to come to Australia in early 2020 via the PALM scheme.
·As for the timing of his protection visa application, the applicant explained he did not lodge it any sooner than September 2023 because he did not know or understand which visa to apply for. He made a lot of friends in Australia, via the churches he has attended, who later gave him direction and advice and helped him submit it.
The Department’s request asked the applicant to explain the 3 photos that he had uploaded to his visa application on 1 September 2023. His response was as follows:
The photo that I provided in my application was to prove that tribal wars is real in Papua New Guinea. Those photos were taken 10 days after the dawn attack by a [person] near [Village 1] [location] in Western Highland Province. Those people on the photo was originally from my tribes and they were prepared to retaliate. They sang the war song believe to invite the war spirit to lead them to the battle ground.
The applicant submitted 3 news articles and a number of additional photos with his response to the Department on 25 December 2023.
The news items comprised:
·An online extract from an article published in [a newspaper][7] [in] 2015 about the deaths of [number] people as a result of tribal fighting in the Western Highlands between the [Tribe 2] and [Tribe 1] tribes which had ‘resurfaced last month at the [villages] of [Village 1] and [Village 3]’. The applicant implied in his statement to the Department that this article comprised evidence of the attack in which his brother and other family members were killed.
·A photo of a news article with the headline ‘[deleted]’. The body of the article is illegible and there is no information provided by the applicant about its source, the date of the publication, or relevance.
·A photo of a news article with the headline ‘[Title]’. The body of the article is barely legible; it appears to concern the involvement of PNG police officers in various types of criminal conduct. There is no information provided by the applicant about its source, the date of the publication, or relevance.
[7] [Deleted].
The photos included:
·A photo of the applicant revealing a scar on his [body]. The applicant refers to this photo in his statement to the Department; it was provided as proof of him having undergone [a medical procedure].
·A photo of a woman in a rural setting and sitting at a roadside, selling fresh produce. The applicant said in his statement to the Department it is a photo of his mother.
·A screenshot of a [social media] post dated [in] January 2016 on the account of a ‘[Person A]’ which shows a very graphic photo of a deceased young man with a severe wound to his [body]. The post reads ‘So sorry bro … R.I.P.’ The deceased man is not identified in any manner but the applicant infers in his statement that it is [Brother A], who was ‘shot and [speared] but couldn’t survive from the hospital’.
·An extremely graphic scene of the remains of a deceased adult male lying at the feet of a crowd, and who appears to have sustained multiple machete wounds. The applicant said in his statement to the Department that the deceased man was one of his tribesmen who had recently been chased and chopped to death in Port Moresby as a result of ongoing fighting.
·A young adult male, appearing emaciated and dressed in a tribal manner. The applicant infers in his statement to the Department that the photo is provided as evidence of a ritual whereby young men who are members of his tribe attend a hausman (men’s house) in the village for an initiation process, and do not eat or drink for weeks.
The applicant also provided the Department with the following photos (but without also providing an accompanying description or explanation within his statement):
·The remains of a housefire, including a burned bedframe, in a rural setting.
·The remains of a burned house in a rural setting.
·An older woman, with visible burn scars to her arms, sitting in a rural setting.
·A young boy with his [body] exposed to show that he is missing his hand and has a severe scar on his upper arm, in a rural setting.
The first hearing: 24 May 2024
Personal background
I asked the applicant about his immediate family in PNG. What he told me was consistent with what he had said in writing to the Department (summarised above at [42]) except that he spoke about [a] sister who had not previously been mentioned. The applicant’s sister is [aged relative to] him. She lives in a settlement in Port Moresby with her husband and [children].
I asked the applicant why his detailed statement to the Department on 25 December 2023 had not included a reference to his [sister]. He appeared shocked and confused by my question. He said it was an innocent mistake. He went on to explain that, in fact, his parents live in a semi-detached, small lean‑to which is connected to his sister’s residence.
The applicant recounted that he and his family lived in the coastal town of [Town 1] for many years, because his father worked for a [business] which was located there, and the employer provided its employees with accommodation. This is why the applicant was born in [Town 1] and grew up there. He completed all his schooling in [Town 1] until [grade], corresponding with the calendar years [specified]. During that period, he went away to a [different] school known as [School 1], which was located in the Eastern Highlands of PNG.
Meanwhile, the applicant’s parents left [Town 1] in around 2013 when his father lost his job as a result of the business going into decline. They moved to Port Moresby.
The applicant never lived in [Village 1]. Rather, it was his parents’ home village. The family visited the village ‘when [the children] were small’. The applicant later returned for his rite of passage at age 12 or 13 years. He stayed in the village hausman with numerous other boys of a similar age for 4 to 5 weeks, under the guidance and care of the male elders. The boys fasted, were circumcised, and had ‘men’s talks’.
This was the last time the applicant visited [Village 1]. It was in 2007. The applicant has [specified relatives] who live there. They are subsistence farmers.
The only means of accessing [Village 1] is by walking. There is no road or means of getting there by a motor vehicle. The applicant said it takes 4 days to get there via a bush track.
Protection claims
The applicant spoke to me about the attack that took place in [Village 1] in July 2015 during which he claimed that his [Brother A] was fatally wounded. He learned what happened in [Village 1] via his father who was personally contacted by someone from the village.
I asked the applicant if he had ever experienced any threats of harm or other issues as a result of the violence involving his family’s tribe and/or the attack in [Village 1]. He said he had received threats and elaborated:
They called my dad [after the attack]; they said to him: ‘we are hunting your family’.
The applicant also remembered an incident in [Town 1] in around 2016 when he was out in public on the street and ‘people started staring at me and marching towards me’ in an intimidatory manner. He immediately sensed that those people were going to harm him, so he was ‘quick to get on a bus and go home’. He did not feel safe. Three weeks later, he left [Town 1] and resumed living with his parents in Port Moresby.
I asked the applicant why [Brother A] was present in the village when it was attacked by the enemy tribe in July 2015. He told me [Brother A] was ordinarily based in [Town 1] but he visited [Village 1] from time to time, for business reasons. [Brother A] earned an income by purchasing [product] in bulk from a shop in [Town 1]. He would bundle up the [products], transport [them] to [Village 1], and resell the items to the villagers. [Brother A] had been doing this for a couple of years. Sometimes he would stay in the village to carry out sales; other times he would deliver the [products] and someone else would sell it on commission.
I discussed the [social media] post of [January] 2016 which the applicant provided to the Department as evidence of [Brother A’s] death. Firstly, I asked how he obtained a photo of the deceased body. He said his father had sent it to him, but the photo was taken by a community member who was at the hospital. Secondly, I asked the applicant why it was posted on a [social media] account in the name of ‘[Person A]’ and not in the applicant’s name, which is [name]. He said he used the name ‘[Person A]’ on [social media] instead of ‘[applicant’s name]’ but he doesn’t use that account anymore, and had lost the password, and so could not access it to show me the post on his mobile phone.
I took the applicant to the news article dated [in] 2015, which reported on the tribal violence in [Village 1], and which he had provided to the Department in support of his claims. I showed it to him and asked where he got it from. He said he took a screenshot from [social media].
I then asked the applicant, one by one, about the 3 photos he had uploaded to his IMMI Account as part of the initial visa application and the 4 photos he later provided to the Department on 25 December 2023. In respect of each photo, the applicant gave me clear, descriptive, and unhesitant evidence. He was unequivocal that each photo directly related to the July 2015 attack on [Village 1] village, and they depicted either:
·the immediate aftermath, such as dead bodies on the roadside near [Village 1] and burned remains of infrastructure in [Village 1]; or
·some of the victims of the violence, such as the older woman with the burn scars and the young boy with the missing hand and scarred arm.
I asked the applicant how he obtained the photos. He said he had reached out to the ‘village leader’ after receiving the Department’s request for more information in support of his claims. The photos in question were supplied by that person to the applicant via a [social media] forum.
At a later stage during the hearing, I told the applicant I had located 5 of the photos he had supplied to the Department, and given evidence about during the hearing, on various news websites via a Google search about tribal violence in PNG. I showed him what I meant on my computer screen in the hearing room. I told him that according to the news reports I had found which featured the photos in question, they did not have anything to do with the attack on [Village 1]. I asked him if he had anything to say to me about this. He responded insistently that ‘these are photos from my village’ and ‘they are the faces of people from my tribe’. He also said something to the effect that the journalists who wrote the reports must have got it wrong.
The applicant was adamant the photos had been given to him by a village leader known to him and he trusted that person; he ‘swore on oath’ as to the photos’ veracity. I indicated that I was keen to be shown exactly how the applicant obtained the photos so as to clarify the issue; in response, he said he would indeed be able to show me. Our exchange on this topic concluded with me advising the applicant that I would give him the opportunity to address the situation in writing after the hearing.
I asked the applicant if he could avoid the violence by staying away from the village and the district where the fighting took place. He said, in effect, that it wasn’t that simple. He cannot stay in Port Moresby because there is no work there. He would need to move around to find job opportunities. In turn, this would affect his personal safety because:
My life would be at risk because the enemy tribes are hunting our family everywhere.
He also explained that:
Even if you are not involved [in any of the attacks in the village], then you belong to that tribe and so you are subject to the violence.
He said you do not ever need to have been personally involved in the fighting to become a target of an enemy tribe. You are at risk simply because you belong to a particular family. In this regard, he told me his father had received ‘warnings’ from the village along the lines of: ‘you and your family will never escape this’, in particular because the enemy tribe were under the (mistaken) belief that his father had supplied weapons to the village.
Put simply, the applicant emphasised that he cannot return to PNG because he is at risk of being seriously harmed, in the form of the tribal violence, no matter where he lives.
Delayed lodgement of protection visa application
In the course of the hearing, I discussed the timing of the applicant’s protection visa application with him. I asked him how he found out about protection visas in Australia. He said when he first arrived, he didn’t know anything. But when he resigned from his job – which was connected to his Subclass 403 visa – he talked to one of his ‘church members’ about other options. He then spoke with a lawyer about his situation, and he was advised by the lawyer to apply for a protection visa. Having said this, he lodged the application without input or a review from a lawyer or agent.
Section 424A letter and the applicant’s response
On 24 May 2024, after the hearing, the Registry sent the applicant a letter which invited him to comment about the 5 photos he had provided to the Department and the fact that his evidence about those photos contradicted what was said in publicly available news articles featuring the same photos. The letter annexed the relevant photos and the news articles.
The applicant was specifically told this information was relevant to his case because it might cause me to consider that he had attempted to provide false information and/or mislead the Department and the Tribunal.
The applicant replied to the letter on 14 June 2024. He provided the following explanation regarding the photos:
As a member of a remote and marginalized community in [Village 1], Western Highlands Province in Papua New Guinea, I have faced immense challenges and the constant threat of violence and persecution in my home country. It is with great trepidation that I have sought asylum, in the hopes of finding safety and security for myself and my family.
In an effort to corroborate the dire circumstances I have endured, I reached out to [Mr A], a respected community leader in my village, to request any photographic evidence that could support my asylum claim. [Mr A], who is well-connected with the people in our region, promptly provided me with 5 photographs that he believed would be impactful in demonstrating the reality of the threats we face.
While I initially believed these photos to be authentic depictions from our village, I later learned that 4 of the 5 images had actually been downloaded from the internet by [Mr A]. His intention, however, was not to mislead, but rather to ensure that I had a clear understanding of the true and ongoing violence that plagues our community.
One particularly harrowing photo showed a young boy named [name], a fellow villager, who had his hand brutally severed during a tribal conflict. This tragic incident, while not directly related to my personal experiences, exemplifies the level of cruelty and disregard for human life that has become normalized in our region. The sight of a child suffering such a devastating injury is a jarring reminder of the constant state of danger and uncertainty that we face.
The other downloaded images, while not authentic to my specific circumstances, accurately reflect the climate of fear that permeates our daily lives. Homes being burned, people fleeing in terror, and the aftermath of violent attacks - these are the realities that we, as a community, are forced to confront on a regular basis. Execution-style killings, targeted attacks, and the constant threat of retaliation have become a grim reality that we must endure.
I deeply regret any confusion or inaccuracies in the information I had initially provided to the Tribunal. As a vulnerable asylum seeker, I was simply relying on the guidance and support of a trusted community leader, unaware that some of the evidence he had supplied was not entirely accurate. It was never my intention to mislead or provide false information, but rather to convey the true and harrowing nature of the circumstances we face.
I am now in the process of obtaining more reliable and directly relevant evidence from [Mr A], including any photographs or documentation that can clearly substantiate the specific threats and persecution I have faced in my home country. I am committed to presenting the Tribunal with a comprehensive and truthful account to support my asylum claim, so that they may fully understand the gravity of the situation in my region and the very real risks to my safety and well-being.

The applicant wrote the following in a separate statement attached to his email of 14 June 2024:
I want to express my sincerest apologies for any confusion or misunderstanding that may have arisen from the photos I shared with you. Regrettably, I was unaware that those images were sourced from the internet, and I deeply regret any unintended consequences they may have caused. The intention behind sharing those photos was to shed light on the difficult circumstances in my village, reflecting the struggles we face daily. I now realize the importance of clarity and transparency in all communications and extend my apologies to you, the department, and the government for any inconvenience caused.
I must also acknowledge the difficulties I encountered in securing an interpreter and legal representation. Despite my best efforts and numerous attempts, the circumstances proved challenging, leaving me without the necessary support in navigating the complexities of the situation. I assure you that I have approached these matters with utmost sincerity and diligence, striving to address them to the best of my abilities.
The challenges I have faced, particularly after losing my visa and the subsequent uncertainties that followed, have been overwhelming. The thought of returning to my homeland under such circumstances, where job opportunities are scarce and the political landscape is uncertain, fills me with deep concern and anxiety. The recent natural disaster in the boarded Province of Enga which we also shared mountain range, has only added to the hardships faced by my community, compelling us to seek new beginnings amidst adversity.
The second hearing: 20 June 2024
The applicant attended a second hearing on 20 June 2024. I indicated to him that I wanted to clarify some issues with him arising from the information he had provided to the Tribunal after the first hearing, in addition to a few other matters.
I firstly raised with the applicant an inconsistency in his evidence about his parents’ home village. At the first hearing, he said they both came from [Village 1]. But he told the Department his father was from [Village 1] and his mother was from a village called [Village 2].[8] I asked the applicant what was correct. He said he had not intended to tell me his parents came from the same village; he meant to say they came from the same province or district.
[8] Per my summary above at [42].
I then asked the applicant about a police certificate which had been supplied to the Department for the purposes of his Subclass 403 visa application. The certificate recorded the applicant’s ‘place of origin’ as [a village in] Central Province, and not [Town 1] or, alternatively, the Western Highlands, per the applicant’s evidence in support of his protection visa application.[9] He said he had not personally completed the form which was required to obtain the police certificate; someone else did it for him. It was done in [Town 1] and sent off to Port Moresby, in November 2019. It took about a month to be processed. He noticed the certificate had the incorrect ‘place of origin’ on it when he got it back but he ignored it, because he was afraid it would delay the Subclass 403 visa application process and he would miss out on the opportunity to come to Australia.
[9] The applicant was put on notice about this information on the police certificate, and invited to comment on it, via a letter from the Tribunal dated 29 May 2024.
I asked the applicant why he did not list any family members whatsoever on the protection visa application form lodged via IMMI Account. He said he thought the question on the form only referred to family members located in Australia.
I asked the applicant why the only address he listed on the protection visa application form was for [Town 1], and he did not mention having lived elsewhere in PNG (such as Port Moresby). He said the [Town 1] address was the only one that he knew. Where he stayed with his parents and his sister’s family in Port Moresby did not have a postal or house address.
I asked the applicant why he did not refer to his connection with Western Highlands or [Village 1] in the context of his protection claims on the visa application form (keeping in mind he used the words ‘my village’ on the form). He answered in a vague manner, explaining that he lived in [Town 1] ‘around that time’, and did not have ‘more knowledge about it’.
I asked the applicant why he did not say anything about his brother being killed as a result of tribal violence in July 2015 and/or provide details of the attack on [Village 1], as part of his protection claims on the visa application form (keeping in mind that he referred to ‘my relatives’ being shot and killed). He said that he filled out the form himself, and ‘because of the pages, [he] put the story that is general’. But when the Department subsequently asked for more information, then he gave it to them.
I asked the applicant why he did not claim on the visa application form that his father had received direct warnings (arising from the tribal violence in [Village 1]) or that he and his parents had gone into ‘hiding’ in a settlement in Port Moresby. He said he wrote what he understood that he needed to write, based on the questions on the form, but did not have the benefit of any guidance.
Insofar as the 5 photos were concerned, the applicant acknowledged the evidence he gave at the first hearing was incorrect. He said it was all because he had misunderstood what he had been told about the photos by the village leader, [Mr A].
I put to the applicant that he gave me the distinct impression at the first hearing that he had personal, firsthand knowledge of the people and places in the photos. I reminded him that he was adamant the photos were from his village and/or of people he recognised, even when I told him I had found the same photos on the internet. He apologised for what he had said previously. He repeated that he had genuinely believed the photos were from his village and he had misunderstood.
I also sought to clarify with the applicant what ‘challenges’ he faced after ‘losing [his] visa’.[10] In short, he explained his Subclass 403 visa had been cancelled ‘in around 2021 or 2022’. He was able to obtain a bridging visa after the cancellation, but he was not given work rights. He spent a significant sum of money (i.e., all his savings) on a lawyer to appeal the visa cancellation, but it was not successful.
[10] Per one of his statements of 14 June 2024, extracted above at [73].
The appeal process associated with the visa cancellation concluded in June 2023. The applicant explained his thoughts to me at that time were: ‘If I fail my appeal, I don’t see my life in PNG’. He was afraid to return home. He did not have a future in PNG: ‘I don’t have any money’ and ‘I don’t have capital to start my life’.
I put to the applicant that he had only applied for a protection visa after his other options had run their course. He replied:
I do have a threat; I lost my brother; it is an honest thing. I don’t know how to put it in any way that you understand. Life is very challenging. I don’t have anything. I can’t move around in PNG looking for job; my life is on the line. I might be killed. I will not have a normal life; I will not; I will not be able to help my life. I don’t know what my future is going to be like.
The applicant told me he wanted to provide ‘fresh documents’ to prove and clarify everything.
Post-hearing correspondence
On 27 June 2024 the Registry wrote to the applicant to ask him if he intended to provide further evidentiary material in support of his case. In response he said that he was trying to reach out to his family for more evidence and would reply soon.
To date, the applicant has not submitted any more evidence after the second hearing.
However, as indicated above, he contacted the Tribunal on multiple occasions about the topic of legal representation. Within that context, the applicant made additional submissions which expanded upon the reasons why he fears returning to PNG.
Specifically, the applicant made the following (somewhat repetitive) claims about the situation in PNG in his post-hearing correspondence:
·There is a pervasive climate of violence and insecurity.
·The economic instability […], exacerbated by the government’s mismanagement, has led to a sharp rise in the prices of essential goods and services [which] has created a challenging environment for [his] family and [him], making it increasingly difficult to meet [their] basic needs.
·[T]he prevailing law and order issues, along with economic hardships such as skyrocketing prices and increased criminal activities, exacerbate the challenges faced by individuals like [himself].
·Returning to [PNG] poses grave risks to [his] well-being, both physically and mentally. The prospect of detention in such circumstances would be detrimental to my health, particularly considering [his] responsibilities towards supporting [his] parents financially. The socio-political climate in [his] homeland makes job prospects bleak, and the escalating risks to personal safety inhibit the freedom to explore employment opportunities.
Country information
The DFAT Report states as follows under the heading “Inter-Group Violence”:
2.27 Tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period.
2.28 Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. 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. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced.
2.29 Land disputes are a common catalyst for unrest in PNG. Ninety-seven per cent of land in PNG is customarily held. Conflict typically escalates from territorial disputes into violence, with some incidents being ‘payback’ for previous incidents. While 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 (which served to limit the extent and targets of violence) than in the past. Inter-tribal fighting often results in the destruction of communal property and services (such as health clinics, schools and transport infrastructure) and in substantial numbers of internally displaced persons. Sources report national and provincial governments are disinclined to rebuild after such destruction.
2.30 Observers have suggested that increased fighting in the Highlands should be viewed as a resort to self-help through violent means, in the absence of effective government alternatives for managing disputes peacefully. Police capacity and willingness to prevent and investigate tribal fighting is typically limited […] In Hela province, which has a population of 400,000 people, there are just 83 Royal Papua New Guinea Constabulary (RPNGC) officers, as noted by Prime Minister Marape in response to the July 2019 massacre. Often the RPNGC are outnumbered and outgunned by warring groups and can only intervene at significant personal risk.
2.31 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.
2.32 DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG.[11]
[11] My emphasis in bold.
Based on this information, I accept that tribal violence in the Highlands (including Enga Province) has occurred historically and remains prevalent to date, and that it arises from land disputes.
I also accept that conflict between enemy tribes in PNG can and does continue in other locations, including in Port Moresby, and that some incidents involve a ‘payback’ motive and the targeting of individuals.
With regards to the other concerns expressed by the applicant, the DFAT Report says:
·PNG is a poor country […] According to a measure of poverty used by the World Bank, 85 per cent of the people of PNG are considered poor, due to their lack of disposable income, low level of educational attainment and low level of access to electricity.[12]
·PNG’s population is very young. Around 35 per cent of the population is aged under 15 years and the median age is 22. However, most young people have limited access to education or skills training, and very limited job prospects.[13]
·Violent and petty crime are common in PNG, especially in Port Moresby, Lae and other urban centres. Robbery, assault, sexual assault and gang rape, and property crimes are all relatively common. Informal settlements in and around towns and cities are particularly dangerous. 'Bush knives' (machetes) and guns are often used in assaults and robberies. Most robberies involve weapons […] Police response is usually inadequate.[14]
[12] Paragraph 2.8. My emphasis in bold.
[13] Paragraph 2.9. My emphasis in bold.
[14] Paragraph 2.26. My emphasis in bold.
Based on this information, I accept the majority of PNG’s population endure economic hardship and that PNG’s young people have very limited job prospects. They also live in a society that experiences high levels of violent crime, which is not adequately addressed by their police force.
On the face of the DFAT Report, the applicant’s claims are certainly plausible. But I must consider and evaluate the actual evidence he has provided and the specific assertions that he has made. I must then consider whether the evidentiary findings entitle the applicant to a protection visa.
CONSIDERATION OF THE CLAIMS AND FINDINGS
Fear of tribal violence
The applicant has consistently claimed throughout the visa application process and review proceedings that he fears returning to PNG because he will be seriously harmed or killed as a result of tribal fighting, and because of his membership of a particular tribe. But the applicant’s evidence about these matters has not been consistent.
On the protection visa application form, the applicant made generalised statements about his village having been ‘burnt down’, his ‘relatives’ having been ‘shot and killed’ as a result of ‘political differences’, and personally facing the prospect of being given ‘no choice but to join the fight’ upon his return to PNG, or face being killed by his own tribe. He asserted he could be killed anytime and anywhere by his ‘tribal enemies’.
When the applicant was asked to particularise his claims to the Department, he then made a series of very detailed statements which mostly focused on a specific incidence of tribal violence which took place in [Village 1] [in] July 2015, and which had been reported on in a PNG newspaper. He said his [Brother A] was killed, together with other family members, in that attack. He said: ‘we lost everything […]’ Among other matters, he stated [Brother A] was his only sibling, he and his parents initially hid and then fled [Town 1] when they were told of the attack (having been warned they were in danger), and his parents have since been ‘in hiding’ in Port Moresby, moving around ‘from places to places’ because of ongoing threats.
At the first hearing, however, the applicant confirmed neither he nor his brother had ever actually lived in [Village 1]. In other words, it was not the applicant’s home. It was not his brother’s home. It was not his father’s home anymore, and it had not been for at least a couple of decades, if not much longer. Rather it was a village where his father was born and where some of their family members still lived. But the last time the applicant had visited the village was in 2007. Accordingly, the applicant and his family had not ‘lost everything’ in July 2015 as declared.
Moreover, the applicant explained to me [Brother A] was in [Village 1] by happenstance when the July 2015 attack took place. It was, in effect, a case of being in the wrong place at the wrong time. He was there as a kind of travelling salesman. On the applicant’s own evidence, therefore, [Brother A] was a victim of tribal violence in a general sense but he had not been personally targeted nor actively involved in any ongoing conflict with an enemy tribe. I am prepared to accept this evidence. Having said this, I do not accept the graphic photo posted on the [social media] account of a ‘[Person A]’ [in] January 2016 necessarily depicts [Brother A’s] body.
The applicant also clarified at the hearing that his parents had moved from [Town 1] to Port Moresby in around 2013, when his father lost his job. In other words, even if the applicant’s parents happened to have been visiting [Town 1] at the time of the [Village 1] attack, they were ordinarily living in Port Moresby by then. As such, there is no link between the tribal violence and the decision made by the applicant’s parents to relocate to Port Moresby, as had been implied by the applicant in the statements he gave to the Department.
Additionally, it turns out the applicant’s parents live in a lean-to connected to a dwelling occupied by [a] sister who he had failed to mention in any of his written statements to the Department. In response to the Departmental request to provide details of his parents and siblings, he wrote: ‘Only two of us in the family. Mum gave birth to the first son …[who] will be turning [age] up in heaven […]’ He also wrote he was the ‘only one supporting’ his parents. I found the applicant’s characterisation of the omission to refer to his sister as an innocent mistake to be curious, given the specific wording he had chosen to use when describing his immediate family composition.
Regardless, the inconsistencies which concern me the most are those which relate to the photos provided by the applicant to the Department as a means of substantiating his protection claims, and the varying evidence he has given about them. He sought to rely on the photos as ‘proof’ of the attack on [Village 1] which had become the centrepiece of his claims via his response to the Department of 25 December 2023. When I put the applicant on notice at the first hearing that I had located publicly sourced information which indicated the photos were not what he said they were, he fervently doubled down on their authenticity. It was only after being invited to comment about the issue in writing that he admitted in the vaguest of terms that ‘the evidence was […] not entirely accurate’. He attributed blame to a ‘trusted community leader’ for the ‘confusion’ and ‘misunderstanding’.

As outlined above, I discussed the photos with the applicant again at the second hearing. He reiterated it was a misunderstanding on his part. But such an explanation is at odds with both the specificity of the evidence he had previously given, as well as the manner in which he gave that evidence. There had been no equivocation on the applicant’s part; he gave evidence to the effect that he personally knew the people and the places depicted in the photos, and they were all connected in one way or another with the [Village 1] attack, when in fact he did not, and they were not. Put bluntly, the applicant misinformed the Department when he provided the photos in support of his visa application, and he attempted to perpetuate the deception at the first hearing in support of his review application.

107. I do not consider an applicant who misrepresents their evidence is necessarily a deceitful or untrustworthy person. I am also sensitive to the difficulties often faced by protection visa applicants in obtaining documents or other evidence to corroborate their claims. At the end of the day, however, I have found the applicant in this case to be an unreliable witness and the consequence of his variously inconsistent evidence is that I am not prepared to give him the benefit of the doubt when it comes to the genuineness of all aspects of his claims, in particular where they have not been corroborated by independent means.

The applicant did not have a legal representative to guide him during this process. But no one needs legal advice to know that it is important to answer questions truthfully, to provide correct and fulsome information when it is requested, and not to misdescribe or pass off photos as evidence of something that they are not. I consider the applicant has sought to embellish his own situation insofar as the issue of tribal violence in PNG is concerned. He inappropriately personalised what happened in [Village 1] (i.e., ‘my village has been burnt down’ and ‘we have lost everything’) and was misleading about other matters (i.e., ‘if I were to go back, I have no choice but to join the fight […]’).
Meanwhile, the applicant has not suffered any harm at all as a result of violence linked to tribes in the Western Highlands of PNG or otherwise. He was not born in the Western Highlands and has never resided in the area. He has never been involved in tribal fighting and was not called upon to join the conflict at any stage. Assuming his family members were killed in a tribal attack in the Western Highlands in July 2015, there has been no payback violence or retaliatory conduct taken against the applicant or his parents during the intervening period. The applicant’s parents have been based in Port Moresby for a number of years without incident, and still live there to date. The applicant spent time living in each of Port Moresby and [Town 1] until February 2020 (when he left for Australia) without experiencing harm linked to tribal violence.
Even if the applicant’s father had indeed received ‘warnings’ as a result of what happened in [Village 1] in July 2015, or he had been mistakenly suspected of supplying weapons to his relatives in the village at one stage, or the applicant’s family’s ‘enemies’ were seeking to avenge the death of 5 men in their tribe at the hands of the applicant’s cousins, the reality is that no harm towards the applicant or his parents (or his sister) has eventuated. I accept the applicant and his parents may well have been on high alert when they learned of what took place in [Village 1], and potentially sought to keep a low profile for a while thereafter, but I do not accept they have been living in hiding or receiving ongoing threats which caused them to take evasive action (e.g., by moving ‘from places to places’) for a number of years.
I accept the applicant experienced an incident on the streets of [Town 1] in 2016 when he saw a group of people staring at him and then approaching him in an aggressive and intimidatory manner, causing him to feel threatened and unsafe such that he made a quick getaway from them. But there is no basis upon which I am prepared to find the incident was related to tribal conflict of any kind, or that it establishes the applicant was a target of harassment because of his relatives and tribal background. It was simply too vague a confrontation (if you could even call it that), and open to other explanations.

112. I acknowledge and accept the applicant’s general submission that even people who have not been directly involved in the tribal fighting can still be targeted by reason of their tribal ethnicity and can be seriously harmed even if they do not live in the villages where the conflict has originated.[15] In the applicant’s case, however, I am not prepared to accept the blanket assertion he has made about being faced with such a scenario if he returns to PNG (i.e., ‘I can be killed anytime and anywhere […] by my tribal enemies’) in circumstances where I have very serious questions about the reliability of his evidence generally, and I consider he is prone to embellishment, and there is no corroboration, despite being given ample opportunity to provide ‘fresh documents’ to the Tribunal.
[15] Such a statement is consistent with the country information extracted from the DFAT Report above.
113. In summary, as a result of the concerns that I have expressed about the claims made by the applicant and my findings in that regard, I do not accept that the applicant has been targeted as a result of tribal conflict in the past nor that he will face harm of such a kind if he returns to live in PNG. Rather, I consider his ordinary day-to-day life in PNG was (and will be) very much removed from such matters.
Fears concerning violence, insecurity and socio-economic hardships in PNG

In the course of the review proceedings, the applicant has described other reasons why he is fearful of returning to PNG which are separate and distinct from the risk of being harmed because of tribal conflict. They relate to problems such as the high incidence of violence (and other crime) in PNG and associated safety concerns due to ‘law and order issues’, plus the high likelihood of economic hardship caused by the combination of the rising cost of living and very limited employment prospects.

115. I accept both that the applicant faced such difficulties when he lived in PNG, and that they still exist to date. I do not doubt the applicant is extremely anxious about and afraid of returning to PNG because he does not wish to go back to experiencing those challenges.
116. It is clear the applicant came to Australia to seek out a much more stable and secure life, and to provide financial support to his family back in PNG. He wants to achieve a prosperous future for himself, and to help his family. He is a determined and ambitious young man.

The applicant expressed considerable concerns about finding a job in PNG in particular. I understand that the applicant would like to remain in Australia and enjoy what would indisputably be a better quality of life, including by working hard and earning a steady income. But these very real concerns do not necessarily equate to an entitlement to a protection visa in accordance with the Act.
THE APPLICANT’S ELIGIBILITY FOR THE VISA
Is the applicant a refugee?

118. As explained above, in order to be granted a protection visa pursuant to the refugee criterion the applicant must have a well‑founded fear of persecution per ss 5H(1)(a) and 5J of the Act.
119. The test for determining well-founded fear was enunciated by the High Court in Chan v Minister for Immigration & Ethnic Affairs (Chan).[16] The Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution for a Convention-stipulated reason (i.e., one of the s 5J(1)(a) reasons).
[16] Chan v MIEA (1989) 169 CLR 379 at 396.
120. In this case, I am satisfied the applicant is subjectively fearful of returning to PNG.[17]
[17] Albeit it is questionable whether his fears are linked to any of the s 5J(1)(a) reasons.

The objective element of the ‘well-founded fear’ involves an assessment of whether there is a ‘real chance’ the applicant will experience the feared harm per s 5J(1)(b).

122. The Act does not define or provide guidance as to what constitutes a ‘real chance’. However, the High Court in Chan considered the term to be synonymous with other terms such as ‘reasonable degree of likelihood’, a ‘real and substantial risk’ and a ‘reasonable possibility’.[18]
[18] Chan v MIEA (1989) 169 CLR 379; see in particular Mason CJ’s comments at [12] agreeing with McHugh J’s conclusions. See also Dawson J who says: ‘A real chance is one that is not remote […]’ at [19] of his judgement.
123. In order to conduct this ‘real chance’ assessment, I must first determine where the applicant is most likely to reside if he returns to PNG. In this regard, I find that he would be based in either Port Moresby or [Town 1] because he lived in those places previously and it is where his social network and family are still located. For the avoidance of doubt, I do not consider the applicant will ever live in the Highlands region of PNG.

The primary thrust of the applicant’s case has always been that he will be seriously harmed if he returns to PNG by reason of tribal conflict, no matter where he resides there. However, on the basis of my consideration of the applicant’s evidence and my findings set out above, I am simply not satisfied as such. Adopting the language of the Act, I do not find there is a ‘real chance’ the applicant will suffer serious harm as a result of tribal violence if he returns to Port Moresby or [Town 1] now or in the reasonably foreseeable future.
The applicant articulated other fears about returning to PNG. He expects to face significant difficulties in PNG associated with the poor economy, scarce job opportunities, the very high prevalence of crime, and mismanaged or corrupt government bodies. Insofar as these matters are concerned, I do find it inevitable the applicant will experience such hardships. However, there is no country information or other evidentiary basis in this case which links these matters to a s 5J(1)(a) reason. In A v Minister for Immigration & Ethnic Affairs [1997] HCA 4, McHugh J put it as follows (at [88]):
When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion, or membership of a particular social group. Discrimination – even discrimination amounting to persecution - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be […]

126. In other words, the applicant’s other reasons for not wanting to return to PNG are legitimate and rational. But I am not satisfied they are discriminatory nor that they can be linked to the applicant’s race, religion, nationality, membership of a particular social group or political opinion.
127. It follows, therefore, that the applicant does not have a well-founded fear of persecution in accordance with s 5J of the Act. I must therefore conclude the applicant is not a refugee as defined by s 5H(1)(a) and, as such, he is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Is the applicant owed complementary protection?

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I must consider the alternative criterion in s 36(2)(aa). This requires a determination of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, there is a real risk that he will suffer significant harm. In this regard, the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ which comprises a component of the refugee criterion.[19]
[19] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
I have found above in all of the circumstances of this case that there is no real chance of the applicant suffering serious harm on return to PNG in connection with tribal violence. For the reasons set out above and, based on those findings, I must also find there is no real risk the applicant will suffer significant harm in PNG because of tribal violence.
I am satisfied, however, a very foreseeable consequence of the applicant returning to PNG is that he will experience various other significant hardships and adversity (i.e., associated with the weak economy, high unemployment, prevalent crime, and ineffectual authorities). Having said this, the complementary protection criterion distinctively differs from the refugee criterion in that:
·the definition of ‘significant harm’ is prescribed by the Act and exhaustive;[20] and
[20] Per s 36(2A) of the Act. See above at [28] and attached.
·it stipulates that where a real risk of significant harm is a risk faced by the population of a country generally, then it is deemed not to be a ‘real risk’.[21]
[21] Per s 36(2B)(c) of the Act. The reference to population of the country generally refers to the commonly understood concept of the general population. There is no requirement that the risk is faced by all members or every citizen of a country’s population for the provision to apply: BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; 241 FCR 150 at [32] (Buchanan J).

131. In this case, I find that all of the ‘other hardships’ and ‘societal harms’ which await the applicant in PNG (for want of a better way of describing them and his situation):
·are not captured by the legislative meaning of ‘significant harm’; and
·are faced by the population of PNG generally.

132. For this reason, I must conclude the applicant will not face a real risk of significant harm when it comes to the ‘other hardships’ that he will endure.
133. It follows, therefore, that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit

The applicant has not claimed, and there is no evidence to the effect, that he is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act, and who holds a protection visa. Nevertheless, I have considered ss 36(2)(b) and (c) in the applicant’s case and I determine that he does not meet these criteria either.
CONCLUSION

135. I conclude the applicant does not meet the criteria to be eligible for a protection visa.
DECISION
136. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica Edis
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 4153

4 September 2024

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