1501572 (Refugee) - [2017] AATA 304

1501572 (Refugee) [2017] AATA 304 (13 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1501572
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Andrew Mullin
DATE:13 February 2017
PLACE OF DECISION:  Sydney
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 13 February 2017 at 2:53pm

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Particular social group – Women who have left an abusive domestic relationship – Domestic violence – Single unprotected women – Effective protection – Internal relocation – Jealous and violent former partner – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 36, 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 dependant.
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 Immigration to refuse to grant the Applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The Applicant, who claims to be a citizen of Papua New Guinea, applied for the visa [in] July 2014 and the delegate refused to grant the visa [in] January 2015.
The Applicant was represented in relation to the review by her registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1501572 (Refugee)

Details

AGLC: 1501572 (Refugee) [2017] AATA 304
Case: [2017] AATA 304
Decision Date: 13 February 2017

CaseChat Overview and Summary

The applicant, a woman from Papua New Guinea, sought review of a decision concerning her application for a protection visa. The dispute centred on whether she met the criteria for a protection visa, specifically whether she had a well-founded fear of persecution based on her membership in a particular social group. The matter came before the Tribunal for review.

The core legal issues before the Tribunal were whether the applicant constituted a "particular social group" as defined by the Refugee Convention and whether she had a well-founded fear of persecution. This involved determining if women who have left abusive domestic relationships, particularly single, unprotected women facing threats from a former partner, could be considered a particular social group. The Tribunal also had to assess the effectiveness of protection available within Papua New Guinea, including the capacity of the authorities to protect her from her former partner and the viability of internal relocation.

The Tribunal reasoned that the applicant's circumstances, as a woman who had experienced significant domestic violence and was being stalked and threatened by her former partner, placed her within a particular social group. This group was characterised by their vulnerability due to their gender and their specific experience of domestic abuse, coupled with the inability or unwillingness of the state to provide effective protection. The Tribunal considered evidence from the applicant, including police reports and affidavits from her mother and a Papua New Guinean agency, which detailed the ongoing threats and the former partner's evasion of law enforcement. The Tribunal found that the threats were real and that the authorities were unable to provide effective protection, making internal relocation an unlikely solution given the partner's persistent and evasive behaviour.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied section 36(2)(a) of the Migration Act, meaning she met the criteria for a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.CLAIMS AND EVIDENCE The Tribunal has before it the Departmental and Tribunal files relating to the Applicant. The Tribunal has had regard to the material referred to in the delegate’s decision record, a copy of which was attached to the application for review, together with other information available to it from a range of sources. In her protection visa application the Applicant claims, in summary:·She was born in [Town 1], West New Britain, Papua New Guinea, in [year]. She lived at an address in [Town 2], Morobe Province, from her birth to July 2011 when she departed for Australia. She received [number] years of formal education in Papua New Guinea, ending in June 2011. Her father is deceased and her mother and [number] siblings live in Papua New Guinea.·She began a relationship with her partner, [Mr A], in 2009. They were in love at first but the relationship turned abusive. He would call her filthy names, slap and punch her and spit at her. He was very controlling. He burned her clothes on one occasion and on another, in about September 2010, he punched her in the face. Her family took her to a police station to report this incident and [Mr A] was arrested, only to escape later.·[Mr A] stalked her after the incident. He would come to the family home looking for her and once assaulted her there, again punching her on the nose. He continues to visit the family home, swearing and cursing and threatening her mother. ·She had lived in Australia previously as a dependent of her father, who died in a car accident in [city] in [year]. This gave her the idea to escape to Australia and she travelled to [city] on a student visa [in] July 2011.·She knows [Mr A] will kill her if she returns, despite his having been arrested by the police. He is angry that she left Papua New Guinea, is not in custody and is free to do as he wishes. ·The authorities cannot help her because they do not know where [Mr A] is living. They have tried and failed to find him. Attached to the application are copies of:·General character references provided by the Applicant’s educational institutions and her church.·The Applicant’s Australian tax records.·A letter from the Papua New Guinea police [specified] Headquarters, dated [in] June 2014. The writer is a [Detective A], from the office of the [specified branch]. He states that the Applicant sought the assistance of police at [Police Station 1], on or about [a date in] September 2010, presenting with bruises and a bleeding nose. She complained of constant abuse and attacks on her and her family by [Mr A]. The suspect escaped police arrest, despite follow-up at his last known address. The Applicant’s mother has complained that [Mr A] has been harassing and threatening her. She sought help from her lawyers, who wrote to [Mr A]. The writer is concerned about the Applicant’s welfare, wellbeing and safety. He has assessed that the threats are real and if protection action is not taken she would face being killed. ·An affidavit in support of an application for an interim protection order in [Court 1], signed by [name] on [a date in] June 2013, apparently produced with the assistance of the assistance of [Agency 1]. She states she is the Applicant’s mother and that her daughter entered into a relationship with [Mr A] between 2010 and 2011. The relationship did not last, due to [Mr A’s] constant abuse and assaults on her daughter on more than four occasions. He has been constantly assaulting, pestering and annoying her daughter with indecent and defamatory words. He frequently enters her residence and loudly insults her and her daughter with indecent and abusive words. He often sends indecent mobile text messages to assault, defame and provoke her.·A letter from the Papua New Guinea [Agency 1], dated [in] July 2014 and signed by [Senior Official A]. The writer states that the Office has been asked to provide a brief on the problems the Applicant has suffered with her fiancé (sic) since 2009. The relationship appears to have deteriorated to the extent that the fiancé is physically violent toward her. ‘The threat to her safety and security is still very much current and impending with the guy being constantly dodging the Police.’ She has approached the Office for assistance to obtain an interim protection order. The application has been made and has been granted. The police in [Town 2] were given the order to serve on the fiancé but he has gone into hiding. ‘This does not augur well for the young lady as the threat to her existence has clearly intensified by the disappearance of the fiancé. It is obvious that this young lady is currently at great risk and any assistance that is given to her to avoid this threat would greatly assist her cause.’

Decision

Reasons for decision

Given these findings I accept that the Applicant satisfies s.36(2)(a) of the Act.DECISION The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s.36(2)(a) of the Migration Act.Andrew MullinMember

Ratio Decidendi

Legal Principle Established

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