1620364 (Refugee) - [2017] AATA 1820

1620364 (Refugee) [2017] AATA 1820 (10 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620364
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Nicole Burns
DATE:10 October 2017
PLACE OF DECISION:  Melbourne
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 10 October 2017 at 2:53pm
CATCHWORDS
Refugee – Protection Visa – Papua New Guinea – Particular Social Group – Intertribal Violence – Lack of state protection – Politically motivated violence – Relocation not reasonable
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
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] January 2013 and the delegate refused to grant the visa [in] June 2014.
The Tribunal, differently constituted, affirmed the decision of the delegate on 12 November 2015. The applicant sought judicial review of that decision and the case was remitted to the Tribunal for reconsideration by order [of] the Federal Circuit Court of Australia [in] November 2016.
The applicant appeared before the Tribunal on 1 June 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative 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…

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 1620364 (Refugee)

Details

AGLC: 1620364 (Refugee) [2017] AATA 1820
Case: [2017] AATA 1820
Decision Date: 10 October 2017

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from Papua New Guinea (PNG). The applicant claimed to be a member of the [Tribe 1] tribe and feared persecution from rival tribes, specifically [Tribe 2] and their allies. The applicant also alleged he was a target due to his occupation as an [Occupation 1], his perceived wealth, and his past residence in Australia. The dispute before the Tribunal was whether the applicant faced a well-founded fear of persecution in PNG or if complementary protection provisions applied.

The primary legal issue before the Tribunal was to determine if the applicant had a well-founded fear of persecution based on his membership in a particular social group, namely '[Tribe 1] tribesmen', due to intertribal violence. The Tribunal was required to consider the applicant's claims of being targeted by enemy tribesmen, the risks associated with his occupation and perceived wealth, and the possibility of being compelled to fight by his own tribe. Additionally, the Tribunal needed to assess whether relocation to a different part of PNG would be a reasonable and safe option for the applicant to avoid harm.

The Tribunal found that the applicant had a well-founded fear of persecution on the basis of his membership in the particular social group of '[Tribe 1] tribesmen' facing threats from enemy tribesmen. This conclusion was supported by country information indicating that tribal violence, particularly from the Highlands, sometimes extended to urban centres like Port Moresby and Lae. The Tribunal was not satisfied that the applicant could safely avoid serious harm, including 'payback killings', even if he relocated. While the applicant had previously lived in Port Moresby with limited movements and within specific safe areas, the Tribunal determined that relocation was not a reasonable or safe option in his case. Consequently, the Tribunal was satisfied that Australia had protection obligations towards the applicant.

The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

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 EVIDENCE The issue in this case is whether the applicant faces a well-founded fear of persecution in Papua New Guinea (PNG) from rival tribal members or whether complementary protection provisions otherwise apply. The applicant last travelled to Australia on a [visa] in July 2011 on his own PNG passport (a copy of which is on the Departmental file) and the delegate had no concerns with his claimed nationality. The Tribunal accepts the applicant is a national PNG and has assessed his protection claims accordingly. The applicant claims he is a member of [Tribe 1] from [Province 1] in PNG and his enemy tribe are called [Tribe 2] (and their allies). He claims to have been physically attacked by enemy tribesmen in [Province 1] in the past and suffered injuries, and escaped attacks a number of times. He claims he is a particular target and vulnerable to being exposed because he is [an Occupation 1], educated, [details of occupation]. He is also considered wealthy for these reasons and because he has lived in Australia, which would heighten his risk on return. More recently he claims that he is suspected of supplying guns and ammunition to his tribe (considered in more detail below). The applicant also claimed to fear being killed by his own tribesmen if he refuses to fight on return. It is submitted[1] that the applicant faces a well-founded fear of persecution on numerous grounds, including because of his membership of [Tribe 1], as [Occupation 1], and considered a wealthy person. For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution on the basis of his membership of the particular social group of ‘[Tribe 1] tribesmen’ from enemy tribesmen and therefore it has been unnecessary to consider the other grounds advanced. [1] In a written submission provided to the Tribunal dated 30 May 2017. The applicant set out his initial protection claims in his protection visa application. To support his visa application he submitted various articles and a YouTube video documenting tribal violence in his home area in PNG. Before the first Tribunal the applicant provided a statutory declaration in which he expanded upon his claims and addressed concerns raised by the delegate, dated [in] January 2015. He also submitted further country information about tribal violence and criminal activities in PNG as well as copies of photographs of his physical injuries on [details of injuries], allegedly as a result of being targeted by enemy tribesmen.

Decision

Reasons for decision

News report indicates in recent years that tribes from provinces, particularly the Highlands, have carried on tribal violence in other parts of the country, including Port Moresby and Lae[28]. [28] Liam Cochrane, ABC , 21 May 2015 ‘Papua New Guinea tribal clash results in 12 injuries, including man with arrow lodged in eye socket’, ‘Stop mindless payback violence’, The National, 9 March 2015 , ;‘Stamp out ethnic violence for good’, The National 19 January 2015 ;‘Ethnic riots running cities, towns’ The National 20 April 2016;>On the basis of such country information that indicates that tribal conflicts from other regions sometimes extend to urban centres, including Port Moresby and Lae, the Tribunal is not satisfied that the applicant would be able to safely avoid the serious harm – including payback killings - he fears from enemy tribesmen in [Province 1]. Whilst the applicant lived in Port Moresby for a number of years prior to coming to Australia and was not seriously harmed, the Tribunal accepts that he limited his movements at times and lived with either other clan members, [Mr B] or within the [details of safe area] to limit his exposure to enemy tribesmen. Weighing up these considerations, the Tribunal does not find that relocation is a reasonable or safe option in the applicant’s case.For reasons set out above the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group of [Tribe 1] tribesmen should he return to PNG now or in the reasonably foreseeable future.CONCLUSIONFor the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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