1502368 (Refugee) - [2017] AATA 1676

1502368 (Refugee) [2017] AATA 1676 (22 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1502368
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Nicole Burns
DATE:22 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 September 2017 at 11:46am
CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Federal Circuit Court dismissal – Complementary protection grounds – Social group – Women – Domestic violence victim
LEGISLATION
Migration Act 1958, ss 5, 36, 48A, 65, 499
Migration Amendment (Complementary Protection) Act 2011
CASES
AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235
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 first applied for a protection visa [in] February 2011. That application was refused [in] April 2011 and affirmed by the former Refugee Review Tribunal (RRT) (differently constituted) on 15 July 2011. The applicant appealed that decision and the Federal Circuit Court dismissed the application [in] December 2011. The applicant sought Ministerial Intervention; however the Minister declined to intervene [in] February 2012.
From 24 March 2012 a new alternate criteria for the grant of protection visas was introduced by the Migration Amendment (Complementary Protection) Act 2011, so that a person may meet the criteria for a protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that she or he will suffer significant harm.
[In] August 2013 the applicant applied for a further protection visa (the current application under review), pursuant to the Federal Court of Australia decision in SZGIZ v MIAC (2013) 212 FCR 235. The delegate refused to grant the visa [in] February 2015.
The Full Federal Court in SZGIZ held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 (AMA15) upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these…

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.

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Details

AGLC: 1502368 (Refugee) [2017] AATA 1676
Case: [2017] AATA 1676
Decision Date: 22 September 2017

CaseChat Overview and Summary

The applicant, a woman from Papua New Guinea, sought review of a decision by the Refugee Tribunal to refuse her a protection visa. She claimed to fear significant harm from her former partner, Mr A, upon return to her home country. The applicant's case was based on her membership in several particular social groups, including women in PNG, married women in PNG, women subject to domestic violence and sexual abuse, and women without male protectors.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa under section 36(2) of the relevant Act, specifically concerning her claims of persecution based on her membership in particular social groups. This required an assessment of whether the feared harm constituted persecution and whether the identified groups qualified as "particular social groups" for the purposes of the Refugee Convention. The court also considered the relevance of Ministerial Direction No. 56, which mandates the Tribunal to take account of departmental policy guidelines and country information assessments.

The court affirmed the Tribunal's decision not to grant the applicant a protection visa. The reasoning focused on the applicant's failure to satisfy the criterion in section 36(2) of the Act. There was no suggestion that the applicant met the requirements for a protection visa based on being part of the same family unit as a person who already held such a visa. The decision implies that the applicant's claims, as presented, did not establish a well-founded fear of persecution on the grounds of her membership in a particular social group as defined by the relevant legal framework.

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 –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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is [an age] year old woman from [village], near [Town 1] in the Western Highlands Province, PNG. She claims to fear significant harm at the hands of her former partner, [Mr A], on return to PNG. The applicant set out her claims to the Department in a statutory declaration dated [in] May 2014, another statutory declaration dated [in] December 2014 and a final statutory declaration dated [date] December 2014. The representative provided a number of written submissions[1] to the Department in support of the applicant’s case, submitting that the applicant has a well-founded fear of persecution in PNG on the basis of her membership of the following particular social groups:·Woman in PNG;·A married woman in PNG;·A woman in PNG subject to domestic violence and sexual abuse; and·A woman without a male protector in PNG. [1] Dated [December] 2014, [December] 2014 and [January] 2015. On review the applicant provided a further statutory declaration to the Tribunal dated [November] 2015 in which she expands upon her claims and addresses specific concerns raised by the delegate. At the Tribunal hearing the applicant gave evidence about her background, the history of her relationship with [Mr A], and fears upon returning to PNG now, summarised as follows. The applicant told the Tribunal she met [Mr A] at their local market, they became friends, and they moved in together in around 2006. She moved from her parents’ house in [village] to [Mr A’s] house in [another] village, around three hours walk away. They lived together until the applicant left to go to Port Moresby about five days before leaving PNG [in] January 2010. During this period the applicant worked making and selling [goods], selling [food], as well as [other] work. [Mr A] also did [other] work and managed a [farm] where they lived. Although they lived together the applicant said [Mr A] never paid a ‘bride price’ to her family and they did not have a customary marriage ceremony: this was a point of contention for her parents and why her father refuses to speak to her to this day. The applicant said she visited Australia for three months from March until June 2009: staying two months in [a city] and a month in [a town], for a holiday. [Mr A] supported her trip, including financially. He did not join her because they did not have money for both of them to visit Australia at that time. On return to PNG in June 2009 the applicant said the problems began in earnest in her relationship with [Mr A]. Specifically [Mr A] started to use language he had not used previously, and would drink and ‘bash’ her up when he came home. Her neighbours told her they thought he was involved in drugs. One time during this period he got angry at her when she was cooking sweet potatoes and kicked the pot of boiling water which landed on her foot. Another time, in October or November 2009 the applicant said he woke her up around 3am after he came home drunk, started to strangle her, and only stopped after she grabbed his ‘private parts’. After this incident she decided she needed to leave because she was afraid [Mr A] would kill her.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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