1503733 (Refugee) - [2017] AATA 1799

1503733 (Refugee) [2017] AATA 1799 (13 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1503733
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Nicole Burns
DATE:13 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 September 2017 at 12:57pm
CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Social group – Women – Victim of domestic violence – Separated from husband
LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES

Applicant S v MIMA (2004) 217 CLR 387
MIAC v SZQRB [2013] FCAFC 33
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 (PNG), applied for the visa [in] July 2013 and the delegate refused to grant the visa [in] March 2015.
The applicant appeared before the Tribunal on 28 February 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent. She attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
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,…

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 1503733 (Refugee)

Details

AGLC: 1503733 (Refugee) [2017] AATA 1799
Case: [2017] AATA 1799
Decision Date: 13 September 2017

CaseChat Overview and Summary

The applicant sought review of a decision not to grant her a protection visa. The dispute concerned whether the applicant, a woman who had separated from her husband and was a victim of domestic violence in Papua New Guinea, met the criteria for a protection visa. The matter was before the Refugee Tribunal.

The primary legal issue was whether the applicant was a member of a "social group" for the purposes of the *Migration Act 1958* (Cth) such that she would face a real chance of persecution or significant harm if returned to Papua New Guinea. This involved considering whether women who are victims of domestic violence and have separated from their husbands constitute a social group within the meaning of the Act, and whether the applicant's mental health issues were sufficiently severe to warrant protection.

The Tribunal considered Ministerial Direction No. 56, which requires consideration of departmental policy guidelines and country information. While acknowledging the applicant's evidence of sadness, anxiety, loneliness, and past suicidal thoughts, the Tribunal found that no reports from mental health professionals indicated a diagnosed mental illness. The Tribunal also noted the applicant's resilience and full-time employment. Consequently, the Tribunal was not satisfied that her mental health issues were so severe as to pose a real chance of serious or significant harm upon return to Papua New Guinea. The Tribunal also found no basis for the applicant satisfying the criteria as a member of the same family unit as a person who holds a protection visa.

The Tribunal affirmed the decision not to grant the applicant 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.CONSIDERATION OF CLAIMS AND EVIDENCEMental health considerations The representative has submitted that the applicant, deeply affected by the decision to leave her children in PNG and the deteriorating health of her father there (who died in October 2016), has experienced sadness, guilt and felt ‘suicidal on multiple occasions in the last few years’. At the Tribunal hearing the applicant said she was stressed before the hearing and contemplated suicide after the Department’s negative decision on her case. She suffers from black outs sometimes. She sees a counsellor once a month. She said she took medication for depression but stopped last year. Letters from two doctors have been provided to the Tribunal about the applicant accompanying a request that her case was prioritised. That is a letter from [a doctor] [at a] Medical Centre dated [May] 2016 who states that he has met [the] [applicant]; briefly describes her background; and indicates that as she has no family in Australia and a very sick father in PNG and she feels very alone. The other letter provided is from [a doctor of an agency] dated [June] 2016 who states that she has seen the applicant five times since September 2013; she only sees her when she is under extreme stress, noting she is strong and resilient; the applicant describes anxiety and insomnia; occasionally stress causes her to blank out; she has made two suicide attempts; her anxiety and depression are caused by her separation from her children and more recently by her concerns for her father; and because she is separated from her family and friends she feels extremely lonely. The Tribunal accepts the applicant has experienced sadness, anxiety and stress at times and may be lonely in Australia away from her family members, in particular her children. It accepts she may have received support in Australia through counselling and medications in the past to help manage these issues, including her suicidal thoughts on occasion. The Tribunal notes that no reports from mental health professionals have been provided to the Tribunal that indicate she has been diagnosed with or suffers from a specific mental illness. The Tribunal also notes the applicant’s evidence that she works full time [and] the comments from [the second doctor] about her strength and resilience. Given these considerations, the Tribunal is satisfied that her mental health issues are not so severe that they would result in a real chance of serious harm or a real risk of significant harm to her on return to PNG.

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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