1620181 (Refugee) - [2019] AATA 996

1620181 (Refugee) [2019] AATA 996 (7 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620181
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Christopher Smolicz
DATE:7 January 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 January 2019 at 9:31am

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – child applicant – social group – child out of wedlock – social discrimination – development disability – applicant’s mother – at risk as an unmarried woman – well educated with Australian work experience – credibility issues – untruthful evidence about family profile – false documentation in previous protection application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 48A, 48B, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MZAAJ v MIBP [2015] FCCA 151
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 on 16 July 2014 and the delegate refused to grant the visa on 16 November 2016.
The applicant appeared before the Tribunal on 9 October 2018 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent and the Tribunal was provided with a copy of the delegate’s decision.
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.
Refugee criterion
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.…

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: 1620181 (Refugee) [2019] AATA 996
Case: [2019] AATA 996
Decision Date: 7 January 2019

CaseChat Overview and Summary

This matter concerned a protection visa application made on behalf of a child applicant, who was a minor born in Australia. The applicant's claims for protection were based on his status as a child of a single mother, his birth out of wedlock, and a diagnosed developmental disability. The respondent was the decision-maker reviewing the initial refusal of the visa.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under Australia's obligations pursuant to the Refugees Convention, or whether Australia had complementary protection obligations towards him. Specifically, the Tribunal was required to determine if the applicant faced a real chance of persecution or significant harm in Papua New Guinea due to his circumstances as a child of a single mother, born out of wedlock, and his developmental disability, which could constitute membership of a particular social group.

The Tribunal considered extensive country information regarding Papua New Guinea, including reports on the prevalence of document fraud, the challenges faced by women in employment, the high levels of gender-based violence, and the limitations of the education system for children with special needs. Crucially, the Tribunal found that the applicant's mother, despite her claims of abandonment and lack of resources, had a history of using false documentation and had received support from her family to travel to Australia. Her education and work experience in Australia were assessed as placing her in a strong position to secure employment and support the applicant in Papua New Guinea. The Tribunal also found that while single mothers and children born out of wedlock might face some social stigma, this did not amount to serious or significant harm amounting to persecution. Regarding the developmental disability, the Tribunal acknowledged the limitations of the education system in Papua New Guinea but concluded that these were due to a lack of resources and training, rather than a deliberate intention to inflict systematic or discriminatory harm. The Tribunal was not satisfied that there was a real chance of the applicant suffering persecution or significant harm in Papua New Guinea.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958 (Cth).

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 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 EVIDENCEIssue The issue advanced by the applicant is whether he meets the refugee criteria or comes within Australia’s complementary obligations because: · he is a child of a single mother who lacks the resources to care for him or as a result of death or misadventure is not available to care for him· he is a child of a single mother born out of wedlock· he suffers from a developmental disability For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant ([name deleted]) is a minor, born on [date] in Australia. The applicant’s mother is [Ms A’s Alias 1] ([Ms A]). [Ms A] was born in Papua New Guinea. She arrived in Australia on a [temporary] visa on [date] October 2011 as a dependent child of [parent’s names deleted] ([Family 1]). [Ms A] travelled to Australia on a PNG passport. According to the passport she was born on [date of birth 1] and was listed as the child of [Family 1]. On 15 November 2011 [Family 1] applied for a protection visa. At the time [Ms A] was taken to have applied for the protection visa as a member of the family unit.[1][1] Also included in the application were two other children, [names deleted], who travelled to Australia with[Family 1]. The Department of Immigration (the Department) refused to grant the protection visa application on 6 July 2012 and the applicants (including [Ms A]) applied to the former Refugee Review Tribunal (RRT) to review the delegate’s decision. On [date] March 2013 the RRT affirmed the decision not to grant the applicants Protection (Class XZ) visas.[2][2] RRT file [deleted]. On 16 July 2014 [Ms A] lodged a protection visa application on behalf of [the applicant] (her son) and a protection visa application in her own name. [Ms A]’s application was deemed invalid due to the operation of a s.48A bar and s.48B of the Act, and the Department proceeded to assess the applicant’s claims for protection. Initial claims for protection On 14 July 2014 [Ms A], with the assistance of a migration agent, made the following submissions in support of the protection visa application. [Ms A] declared that she was a single mother and [the applicant] was born in Australia. She has no contact with the [the applicant]’s father who does not even know that he has a son. [Ms A] declared that after she came to Australia she realised she was pregnant. She had only met the father once. When she rang him and told him about her pregnancy he did not want to know. She stayed with her parents ([Family 1]) until she gave birth. At first [Family 1] were angry with her because she had broken PNG cultural norms. She asked [a welfare organisation] for help because she did not want to go back to her parent’s house.

Decision

Reasons for decision

The Tribunal does not accept that [Ms A]’s family in PNG had no involvement in sending her to Australia using false documents. Country information confirms that document fraud is prevalent in PNG.[4] The production of false documents is expensive, requires planning and connections. The Tribunal also notes that there are significant risks associated with creating and using false documents to travel to Australia. [4] DFAT Country Information Report PNG 10 February 2017 [5.36] see also The World Today Report Outlines Corruption in PNG Immigration System <>The Tribunal finds that the decision to send [Ms A] to Australia was planned and premeditated. She travelled to Australia using a false passport which specifically lowered her age and created a new identity to enable her to travel as a dependant of [Family 1]. The Tribunal finds that [Family 1] (including [Ms A]) applied for the protection visa using the false identity and [Ms A] was subsequently able to study in Australia. The Tribunal does not accept [Ms A]’s claims that she was abandoned by [Family 1] when they became aware she gave birth to the applicant. The Tribunal finds [Ms A]’s evidence is inconsistent with her migration history. Namely [Ms A] was a secondary applicant in [Family 1]’s protection visa application, she was a party in the appeal to the RRT and she was a party to the ministerial intervention application made in February 2014. The Tribunal notes that the ministerial intervention application was made two and half years after the birth of the applicant. The Tribunal finds [Ms A] was provided with support by her family to send her to Australia and the Tribunal finds her family in PNG will continue to provide her with support in the future. The Tribunal had regard to country information and acknowledges that women face obstacles in finding employment in PNG. Specifically, DFAT report that a number of factors act as barriers to the full participation of women in the workforce in PNG. These include cultural stigma against women’s education or employment; gender discrimination; nepotism; the risk of violence and sexual abuse; high levels of female illiteracy; and low levels of female education. Restrictions to women achieving a good education include underage marriage, unwanted pregnancies, and lack of financial support.[5] The Tribunal does not however accept [Ms A]’s claims that she will be unable to find work in PNG and will not have the financial resources to care for the applicant. The Tribunal finds that [Ms A] has had the opportunity to obtain a secondary education (SACE) in Australia. She is fluent in the English and Tok Pisin languages. She has since completed a Certificate III in [a discipline]and has been working as a [occupation] in Australia. The Tribunal finds that the [Ms A]’s academic qualifications and work experience in Australia place her in a strong position to obtain employment in PNG. [5] DFAT Country Information Report PNG [3.38].The Tribunal has also considered the claim that applicant’s father and/or his family will be able to locate him in PNG and take him away from [Ms A]. The Tribunal finds that it is mere speculation that the applicant’s father will be able to be reunited with the applicant and would seek to take him away from his mother. The Tribunal makes this finding having regard to the following evidence. [Ms A] gave evidence at the hearing that the applicant’s father does not know she has given birth to a son, the father has since returned to PNG and she has lost contact with him. She does not know his name or where he lives in PNG. The applicant’s birth certificate provides no details about the father’s identity. The Tribunal has also had regard to country information and accepts that the level of violence against women is extremely high across PNG. Domestic or family violence is particularly endemic. In this regard the Tribunal accepts that [Ms A] is anxious and fearful about returning to PNG with her young son. Human Rights Watch (HRW) published a report on family violence in PNG in November 2015 that found that the problem continued to be pervasive throughout the country. An earlier survey, published in 2013, found that 80 per cent of men in [an area] reported that they had perpetrated physical and/or sexual violence against a partner. A March 2016 report from Medicins Sans Frontieres (MSF) detailed how a dire lack of protection mechanisms, a weak justice system and a culture of impunity endangered the health and lives of victims of violence even if they managed to reach medical care.[6][6] DFAT Country Information Report 10 February 2017 [3.37]. In relation to criminal violence DFAT report: While varying in degree according to location, the overall crime rate in PNG is extremely high and is characterised by high levels of violence. Crimes occur randomly, and are particularly prevalent in Port Moresby and other major cities; the settlement areas of towns and cities are particularly dangerous. Machetes and firearms are often used in assaults and thefts. Car-jackings, armed robberies, assaults (including sexual assaults) and stoning of vehicles are common. The types of crimes experienced in PNG vary significantly by region and by gender. Gender-based violence and crimes against children occur regularly, and total crime victimisation for women and children are likely to be heavily under-reported […]….women across PNG have a high risk of societal discrimination due to long-standing traditional values and gender roles that restrict their ability to participate fully in the community and workforce. DFAT assesses that women are unable to participate fully in politics in PNG due to deeply held cultural traditions and institutional restrictions. DFAT further assesses that women in PNG face a high risk of gender-based violence, regardless of their social status. Women living in the Highlands provinces are at particular risk, although violence against women occurs nationwide. Women subjected to gender-based violence are unlikely to be able to avail themselves of adequate state protection or support services.[7][7] DFAT Country Information Report 10 February 2017 [2.35] &[3.39].The Tribunal has had regard to the country information regarding the dangers faced by children and women living in PNG in assessing the applicant’s claims for protection. The Tribunal notes that [Ms A] is a single mother and is not in a relationship and is not in a position where she fears of domestic violence in PNG in the reasonably foreseeable future. The Tribunal finds that there is no specific evidence to suggest that [Ms A] or the applicant are at particular risk of systematic (non-random) harm if they were to return to PNG. The Tribunal finds that the claim that the applicant will be a victim of generalised crime and violence if he returns to PNG is speculative. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm from criminals if he returns to PNG in the foreseeable future. The Tribunal has also considered the claim that the applicant will be treated as an outcast due to having a child born out of wedlock. The applicant has not provided the Tribunal with country information to support this claim. The Tribunal notes that the delegate was unable to find any credible information to suggest that people who have children out of wedlock are frowned upon by society. Importantly, no evidence was provided to support the claim that children of single mother’s face persecution in PNG. The Tribunal finds that DFAT’s latest country information report on PNG provides no information on discrimination or persecution faced by single mothers or children born outside wedlock in PNG. Country information referred to by the applicant’s representative does however suggest that ‘unmarried mothers experience greater socioeconomic vulnerability through lack of housing, lack of income and lost educational opportunities’. The Tribunal accepts single mothers may face a level of social stigma and discrimination from the community especially in rural areas in PNG. The Tribunal finds however that this does not amount to serious or significant harm. The Tribunal also notes that [Ms A] has had the advantage of having obtained an education and work experience in Australia which will improve her chance of securing suitable employment, income and accommodation in the future. Importantly the report referred to by the applicant’s representative acknowledges that there is a changing attitude towards unmarried mothers in PNG:In today’s changing society, marriage is an important part of a young woman’s life. In traditional PNG early, and to some extent universal marriages, have been the norm. However, this is changing. Introduced marital types in our societies have contributed towards delays in understanding and putting policies for stable family units in place.Young women have children, whether they are married or not. According to the 1996 Demographic and Health Survey (DHS), the median age for first birth was about 21 years of age. However, some 20 per cent of women give birth at less than 18 years of age, and 35 per cent before 20 years of age. These are relevant issues, because there is a greater probability that younger mothers will be unmarried when they give birth for the first time.[8][8] <>The Tribunal is not satisfied that there is a real chance that the applicant will face persecution in PNG in the reasonably foreseeable future because he was born out of wedlock. The Tribunal accepts that the applicant has been diagnosed with a severe developmental language disorder characterised by severe receptive language difficulties and severe expressive language difficulties. The Tribunal has also considered whether the applicant would face serious harm or significant harm if he were to return to PNG in the reasonably foreseeable future because he has a developmental disability (particular social group of child with developmental disability). The Tribunal is acutely aware that the applicant is [an age]-year-old child whose future education opportunities will be affected if he returns to PNG. The Tribunal accepts the applicant will require considerable education adjustment to address the impact of his communication impairments in the school environment.DFAT reports that although education in PNG is not compulsory, in 2012 the government introduced free tuition for primary school students.[9] DFAT’s country information report states that there is very little capacity in the PNG education system to address children with special education needs or disabilities. Many schools lack adequate toilet facilities and access to clean water.[10] The Tribunal finds that the applicant will have access to an education in PNG however it will not be of the same standard as in Australia.[9] DFAT Country Information Report 10 February 2017 [2.24].[10] DFAT Country Information Report PNG 10 February 2017.On the other hand country information accessed by the Tribunal indicates that the PNG government has attempted to introduce a new ‘inclusive’ national curriculum to assist disabled children with their development and educational needs. In particular it was reported:In 2004, the government of Papua New Guinea (PNG) introduced a new ‘inclusive’ curriculum ‘designed to meet the needs of all students’ (NDOE, 2002, p. 25). The research presented here found that, although the teachers’ practice had changed in some ways since the introduction of the curriculum, they had not adopted many of the ‘student-centred’ teaching and learning precepts prescribed in curriculum documents. The findings from PNG are relevant to other countries introducing more inclusive or learner-centred curricula.Variables shaping the teachers’ practice Non-implementation of the curriculum can be partly attributed to the gap between the technical demands of the curriculum and the capacity of the teachers to meet those demands—for instance, due to lack of in-service training and access to resources. It can also be attributed to culturally-embedded teacher resistance to the facilitative roles they were expected to play in the classroom by the curriculum (Guthrie, 2003) and to teacher scepticism about the validity of constructivist theories of learning.[11][11]Promoting Inclusive Education in Papua New Guinea (PNG) EdQual Policy Brief No.7 October 2010 <>The Tribunal finds that the motivation of the PNG authorities is not to inflict or subject systematic and discriminatory conduct on children with developmental disabilities. The Tribunal has had regard to the country information and finds that the unfortunate reality is that the education system in PNG is ineffective because teachers are poorly trained and lack resources to adequately deal with children who have developmental disabilities. This does not amount to persecution. The Tribunal is not satisfied that there is a real chance that the applicant will suffer persecution if he returns to PNG in the reasonably foreseeable future because he is a young child with a developmental delay. The Tribunal finds that his fear of persecution because of his membership of a particular social group is not well founded.Cumulative assessment of claims The Tribunal is acutely aware that the applicant’s claims are overlapping and must be considered cumulatively. The Tribunal accepts the applicant will be returning to PNG as a child who was born out of wedlock and who has a developmental disability. His mother is a sole parent with the responsibility for his welfare in PNG. As discussed above the Tribunal finds that [Ms A] is well placed to secure employment in PNG due to her education and work experience in Australia. The Tribunal does not accept her father in PNG is destitute and without resources. The Tribunal finds that [Ms A]’s family have provided her with support to travel to Australia in 2011 on a false passport and there is nothing to suggest that they will not continue to provide her and the applicant with support in the future. The Tribunal finds that [Ms A]’s fears that she will be a victim of assault and/or killed and the applicant would be left without any support in PNG is speculative. In conclusion the Tribunal is not satisfied that that there is a real chance, in any of the above circumstances, that the applicant would be left without any support and would suffer persecution for reason of being a member of a particular social group, namely a child without adequate or any parental or family support. Child born to a single mother out of wedlock. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).Are there 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?The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of his or her 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. It is convenient to assess the applicant’s claims by reference to the forms of serious harm exhaustively defined by the Act.There is a suggestion that the applicant fears that the death penalty will be carried out on him or that he will be subject to torture if he returns to PNG. The Tribunal has considered if there is a real risk the applicant will be arbitrarily deprived of his life. Arbitrary deprivation of life is not further defined by the Act. Judicial comments in Australia have suggested that this kind of harm concerns such things as extrajudicial killing and the excessive used of police force: MZAAJ v MIBP [2015] FCCA 151 (Judge Riley, 4 February 2015). Cruel or inhuman treatment or punishment takes place where severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or 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. Degrading treatment is an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. Mere negligence or lack of resources is not sufficient to give rise to cruel or inhuman or degrading treatment or punishment under Australian law.The Tribunal has had regard to country information and finds that there is no intention on the part of the PNG authorities or the community in general to inflict significant harm on children with developmental disabilities or children born out of wedlock. As detailed above the Tribunal finds that there is a changing attitude towards unmarried mothers in PNG and does not accept that the applicant will face significant harm because he is a child born out of wedlock. The Tribunal finds that any shortcoming in the education system which may impact on the applicant’s education is due to lack of resources and inadequate training of teachers.The Tribunal had regard to country information and acknowledges that women face obstacles in finding employment in PNG. The Tribunal does not however accept [Ms A]’s claims that she will be unable to find work in PNG and will not have the financial resources to care for the applicant. The Tribunal finds that it is mere speculation that the applicant’s father will be able to be reunited with the applicant and would seek to take him away from his mother. The Tribunal has had regard to the country information detailed above regarding the dangers from criminal violence faced by children and women living in PNG. The Tribunal has had regard to the applicant’s personal circumstances and attributes and finds however that the real risk is one faced by the population of the country generally and is not faced by the applicant personally.As detailed above there is no evidence to suggest that PNG authorities will intentionally inflict significant harm on the applicant or withhold protection if he returns to PNG. In conclusion the Tribunal is not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG there is a real risk he will be arbitrarily deprived of his life, he will suffer ‘cruel or inhuman treatment or punishment’ and/or ‘degrading treatment or punishment’.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).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).DECISIONThe Tribunal affirms the decision not to grant the applicant a protection visa.Christopher SmoliczMember

Ratio Decidendi

Legal Principle Established

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