2315029 (Refugee)

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.