2315029 (Refugee) - [2024] AATA 2427

2315029 (Refugee) [2024] AATA 2427 (13 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Kathryn Maile Keki
CASE NUMBER:  2315029
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Khanh Hoang
DATE:13 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a).

Statement made on 13 March 2024 at 4:38pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – fear of harm from rival clan wanting to take over family land – family members, including father and brother, killed by sorcery and witchcraft and houses burned down – relocation to small city – previous returns before father’s and brother’s death and recent increases in violence – links to Australia and perceived wealth – mother granted protection on similar claims – country information and academic articles – land, clans and violence – from Western perspective, no evidence of sorcery – applicant’s cultural background and prevailing cultural norms – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
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 dependants.
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 Home Affairs on 6 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Papua New Guinea (PNG), applied for the visa on 28 April 2020.
On 4 December 2023, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 16 January 2024. The applicant sought an adjournment of the hearing, as his legal representative was not available after the Christmas break until 22 January 2024. The hearing was adjourned until 1 February 2024. On 22 January 2024, the applicant requested a further adjournment to allow his representative to obtain under Freedom of Information laws a decision of the Department relating to his mother’s protection visa application, which contained similar claims and resulted in a positive determination for his mother. In the representative’s…

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

Case: [2024] AATA 2427
Decision Date: 13 March 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an applicant from Papua New Guinea. The applicant claimed to fear harm from a rival clan seeking to take over his family land. He alleged that this clan had killed numerous family members, including his father and brother, through sorcery and witchcraft, and had burned down their houses. The applicant had relocated with his family to a small city, but feared he would be followed and targeted due to his family's links to Australia and perceived wealth. His mother had also expressed fear for her safety and the applicant's well-being. The Administrative Appeals Tribunal had previously considered the applicant's claims, taking into account Ministerial Direction No. 84, relevant guidelines, and country information.

The primary legal issue before the court was whether the Administrative Appeals Tribunal had erred in its assessment of the applicant's claims for protection. Specifically, the court was required to determine if the Tribunal had adequately considered the applicant's cultural background and the prevailing cultural norms in Papua New Guinea when evaluating his fear of harm, particularly concerning sorcery and witchcraft. The court also needed to assess whether the Tribunal had properly considered the evidence presented, including documentary evidence and the applicant's interview, in light of the country information available.

The court reasoned that while from a Western perspective, sorcery and witchcraft might lack empirical evidence, it was crucial for the Tribunal to consider the applicant's cultural context and the genuine fear such beliefs could engender within his community. The Tribunal's decision was found to have not sufficiently grappled with this cultural dimension, leading to an inadequate assessment of the applicant's subjective fear. The court noted that the Tribunal had accepted certain factual aspects of the applicant's claims, such as tribal unrest, property disputes, and the deaths of family members, but had seemingly discounted the fear arising from the alleged use of sorcery and witchcraft. The court also considered that the applicant's mother had been granted protection on similar claims, which suggested a pattern of harm that warranted closer scrutiny.

Consequently, the court found that the Tribunal's decision had failed to adequately consider the applicant's claims in their proper cultural context. The decision under review was therefore remitted to the Administrative Appeals Tribunal for redetermination.

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.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 EVIDENCEEvidence before the Department The applicant’s claims for protection were summarised in the delegate’s decision as follows:·The applicant left PNG because a clan in his village wants to take over his family land. They are attempting to kill his family gradually through witchcraft and sorcery so that they can take over the land.·They have killed 12 of his family members over the years along with his father and brother more recently through sorcery and witchcraft. His father, [Mr C], died in 2017 and his brother, [Mr D], died in 2019.·The applicant fears he will be subjected to sorcery and witchcraft like his family members if he returns to PNG.·He didn’t relocate because wherever he goes, they will follow him, and he doesn’t have any family living in other parts of PNG.·This clan knows he has family in Australia. They think the applicant’s family will give him money and guns to take revenge on them. That’s why they want to kill the applicant.·His aunty was the first one to die.·His sister, [Ms B], moved the applicant and his family to [Town 1] from their village. His sister does not want them to live in the village because they will die.·The clan was jealous of the applicant’s family travelling to Australia.·His sisters in Australia were scared to return to PNG for their father’s and brother’s funerals.·His mother fears she will be the next one to die. She is scared of losing the applicant and consequently has trouble sleeping at night when he is not home.·In 2019, there was a big fight in the village. His clan’s house was burnt down, and they have since relocated to other villages.·The applicant’s mother knows people from the village who practise witchcraft and sorcery.·She has seen them around where they live in [Town 1]. They try to protect each other however they can’t live like that forever. PNG is not safe for the applicant or his mother. The applicant provided the following documentary evidence to the Department in support of his claims:·Photos of his family in PNG, deceased family relatives and a burnt vehicle from tribal violence.·Letters of support from the applicant’s sister and nephew. The applicant attended an interview with the Department on 14 August 2023. The delegate accepted that the applicant and his family relocated from [Town 2] to the outskirts of [Town 1] in [Year] due to tribal unrest and family property disputes and that the family’s land remains in dispute with other clans and extended family members. The delegate accepted that there have been intermittent tribal clashes in the applicant’s home district in the past and that there was significant tribal conflict in 2019. The delegate also accepted that many of the applicant’s relatives are deceased due to past tribal violence and natural causes, and that his brother and father passed away in 2017 and 2019, respectively. The delegate also accepted that there is some prevailing community jealousy due to the applicant’s familial links to Australia.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Based on a copy of the applicant’s passport available on the Department’s file, and in the absence of any other evidence to the contrary, I find that PNG is the applicant’s country of nationality and his receiving country for the purposes of refugee and complementary protection assessments. Mandatory considerations 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 EVIDENCEEvidence before the Department The applicant’s claims for protection were summarised in the delegate’s decision as follows:·The applicant left PNG because a clan in his village wants to take over his family land. They are attempting to kill his family gradually through witchcraft and sorcery so that they can take over the land.·They have killed 12 of his family members over the years along with his father and brother more recently through sorcery and witchcraft. His father, [Mr C], died in 2017 and his brother, [Mr D], died in 2019.·The applicant fears he will be subjected to sorcery and witchcraft like his family members if he returns to PNG.·He didn’t relocate because wherever he goes, they will follow him, and he doesn’t have any family living in other parts of PNG.·This clan knows he has family in Australia. They think the applicant’s family will give him money and guns to take revenge on them. That’s why they want to kill the applicant.·His aunty was the first one to die.·His sister, [Ms B], moved the applicant and his family to [Town 1] from their village. His sister does not want them to live in the village because they will die.·The clan was jealous of the applicant’s family travelling to Australia.·His sisters in Australia were scared to return to PNG for their father’s and brother’s funerals.·His mother fears she will be the next one to die. She is scared of losing the applicant and consequently has trouble sleeping at night when he is not home.·In 2019, there was a big fight in the village. His clan’s house was burnt down, and they have since relocated to other villages.·The applicant’s mother knows people from the village who practise witchcraft and sorcery.·She has seen them around where they live in [Town 1]. They try to protect each other however they can’t live like that forever. PNG is not safe for the applicant or his mother. The applicant provided the following documentary evidence to the Department in support of his claims:·Photos of his family in PNG, deceased family relatives and a burnt vehicle from tribal violence.·Letters of support from the applicant’s sister and nephew. The applicant attended an interview with the Department on 14 August 2023.