2010265 (Refugee) - [2021] AATA 4555

2010265 (Refugee) [2021] AATA 4555 (20 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2010265
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Brendan Darcy
DATE:20 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies
s 36(2)(aa) of the Migration Act.

Statement made on 20 September 2021 at 6:57PM
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – Federal Circuit Court remittal – failure to take into account a relevant consideration – complementary protection criterion – gender-based violence from a former intimate partner – cruel or inhuman treatment or extreme humiliation – forced marriage and bride price – single woman of limited education – real risk of serious domestic violence – personal status laws and women in Papua New Guinea – state protection – Wantok system and Wantokism – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 48A, 65
Migration Regulations 1994 (Cth), Schedule 2
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 and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of the Independent State of Papua New Guinea/ Stet bilong Papua Niugini (Papua New Guinea and PNG).
The applicant first applied for a Class Subclass 866 Protection visa on 22 February 2011 (the 2011 Protection visa application). That application was refused on 20 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 (FCCA) dismissed the application [in] December 2011.
After this appeal, the applicant sought Ministerial Intervention; however, the Minister declined to intervene on 23 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.
On 9 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 (SZGIZ). The delegate refused to grant the visa on 4 February 2015.
On 22 September 2017 the…

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 2010265 (Refugee)

Details

AGLC: 2010265 (Refugee) [2021] AATA 4555
Case: [2021] AATA 4555
Decision Date: 20 September 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a national of Papua New Guinea. The applicant claimed she faced a real risk of significant harm if returned to her country of origin, specifically from her former intimate partner and the threat of forced marriage by family members. The Administrative Appeals Tribunal (AAT) considered the applicant's claims in light of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines', as well as country information from the Department of Foreign Affairs and Trade.

The central legal issue before the Tribunal was whether the applicant had established a real risk of suffering harm amounting to cruel or inhuman treatment or extreme humiliation, thereby engaging Australia's protection obligations under section 36(2)(aa) of the Migration Act 1958 (Cth). This involved assessing the applicant's personal circumstances, including her status as a single woman of limited education in Papua New Guinea, and the potential for gender-based violence, forced marriage, and the impact of cultural practices such as the 'Wantok system' and 'bride price' on her safety and personal status. The Tribunal also had to consider the availability and effectiveness of state protection in Papua New Guinea.

The Tribunal concluded that the applicant's claims warranted reconsideration. It found that the applicant faced a real risk of serious domestic violence from her former partner and the threat of forced marriage. The Tribunal noted that the applicant's personal circumstances, including her limited education and status as a single woman, made her particularly vulnerable in Papua New Guinea. The Tribunal also considered the limitations of state protection and the cultural context, including the 'Wantok system', which could exacerbate her vulnerability. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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 issue in this case is whether the applicant faces a real risk of significant harm at the hands of her former intimate partner or under the threat of a forced marriage by family members if she is returned to Papua New Guinea. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant was born on [date] in [City 1], West Highlands Province, PNG, she is a [age]-year-old national of Papua New Guinea. In her protection visa application, the applicant did not note an ethnicity, and stated her religion was Christian, belonging to the Lutheran denomination. In her protection visa application, the applicant claimed to speak English and Tok Pisin, and read and write Tok Pisin. Apart from Papua New Guinea, the country of her birth, the applicant has only ever travelled to Australia. The applicant was granted a [Tourist] visa on 24 February 2009. She arrived in Australia for the first time [in] March 2009 and departed [in] June 2009. The applicant was granted a second Tourist visa on 2 December 2009 and subsequently arrived in Australia [in] January 2010. The Tourist visa ceased on 13 February 2010, at which time the applicant remained in Australia unlawfully. The applicant lodged her first set of claims for protection on 22 February 2011 and was granted a Bridging Visa C on that date. She held a series of Bridging Visas C until 12 December 2012, at which time she again remained in Australia unlawfully. In the applicant’s first set of claims, the applicant claimed that her father was deceased and that she was a member of an anti-PNG government group for which she has been arrested, tortured, imprisoned and, when released, harassed by the authorities. The Department refused to grant the applicant a protection visa on 20 April 2012. The applicant applied to the Tribunal, differently constituted, on 13 May 2011. The applicant did not attend the scheduled hearing. Under s 426A of the Act, the Tribunal proceeded to affirm the delegate’s decision on 14 July 2011. The applicant lodged the present protection visa application on 9 August 2013 and was granted a Bridging Visa C on that date. She has remained lawfully in Australia since on a series of Bridging Visas C. In the present visa application, the applicant indicated that she did not have any family members or close relatives either in Australia or elsewhere. · In a statutory declaration made 21 May 2014 the applicant indicated her parents, two older brothers and an older sister remained in PNG. She has a former de facto partner in PNG.[1]· On 30 June 2014 the applicant furnished the Department with a Form 80 that indicated she was not partnered, nor had any children. Her father was deceased, while her mother remained in Papua New Guinea. She further claimed she has three siblings: two brothers and a sister who remain in the applicant’s country of nationality; [2]· In a further statutory declaration made 15 December 2014 following her interview with the delegate, the applicant stated that the Form 80 indicating her father was deceased was an error and that her father is alive. She had not spoken to her siblings for some time as she feels they hate her and she does not consider them close relatives.[3]Non-disclosure certificates[1] [Department file number] Folios 106–114.[2] [Department file number] Folios 94–102.[3] [Department file number] Folios 131–132.

Decision

Reasons for decision

For the reasons outlined above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.Brendan DarcyMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant was born on [date] in [City 1], West Highlands Province, PNG, she is a [age]-year-old national of Papua New Guinea. In her protection visa application, the applicant did not note an ethnicity, and stated her religion was Christian, belonging to the Lutheran denomination. In her protection visa application, the applicant claimed to speak English and Tok Pisin, and read and write Tok Pisin. Apart from Papua New Guinea, the country of her birth, the applicant has only ever travelled to Australia. The applicant was granted a [Tourist] visa on 24 February 2009. She arrived in Australia for the first time [in] March 2009 and departed [in] June 2009. The applicant was granted a second Tourist visa on 2 December 2009 and subsequently arrived in Australia [in] January 2010. The Tourist visa ceased on 13 February 2010, at which time the applicant remained in Australia unlawfully. The applicant lodged her first set of claims for protection on 22 February 2011 and was granted a Bridging Visa C on that date. She held a series of Bridging Visas C until 12 December 2012, at which time she again remained in Australia unlawfully. In the applicant’s first set of claims, the applicant claimed that her father was deceased and that she was a member of an anti-PNG government group for which she has been arrested, tortured, imprisoned and, when released, harassed by the authorities. The Department refused to grant the applicant a protection visa on 20 April 2012. The applicant applied to the Tribunal, differently constituted, on 13 May 2011. The applicant did not attend the scheduled hearing. Under s 426A of the Act, the Tribunal proceeded to affirm the delegate’s decision on 14 July 2011. The applicant lodged the present protection visa application on 9 August 2013 and was granted a Bridging Visa C on that date. She has remained lawfully in Australia since on a series of Bridging Visas C. In the present visa application, the applicant indicated that she did not have any family members or close relatives either in Australia or elsewhere. · In a statutory declaration made 21 May 2014 the applicant indicated her parents, two older brothers and an older sister remained in PNG. She has a former de facto partner in PNG.[1]· On 30 June 2014 the applicant furnished the Department with a Form 80 that indicated she was not partnered, nor had any children. Her father was deceased, while her mother remained in Papua New Guinea. She further claimed she has three siblings: two brothers and a sister who remain in the applicant’s country of nationality; [2]· In a further statutory declaration made 15 December 2014 following her interview with the delegate, the applicant stated that the Form 80 indicating her father was deceased was an error and that her father is alive. She had not spoken to her siblings for some time as she feels they hate her and she does not consider them close relatives.[3]Non-disclosure certificates[1] [Department file number] Folios 106–114.[2] [Department file number] Folios 94–102.[3] [Department file number] Folios 131–132.