2318017 (Refugee) - [2024] AATA 980

2318017 (Refugee) [2024] AATA 980 (29 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2318017
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:David James
DATE:29 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 January 2024 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – economic conditions and hardship – late claim of tribal violence – deaths of tribal warriors and burning of village while applicant in Australia – no direct threats or harm – family relocated – adverse inference drawn – country information – peace agreements and surrender of weapons – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 411(1)(c), 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 7 November 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 1 October 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act, and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 7 November 2023. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. 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.

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Details

Case: [2024] AATA 980
Decision Date: 29 January 2024

CaseChat Overview and Summary

The applicant sought review of a decision to refuse a protection visa. The dispute concerned whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons, or a real risk of suffering significant harm if returned to Papua New Guinea (PNG). The matter was heard by David James.

The court was required to determine if the applicant had a well-founded fear of persecution under s 5J(1) of the Migration Act 1958 (Cth) and a real chance of being persecuted for one of those reasons if returned to PNG. Alternatively, the court had to consider if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to PNG, the applicant faced a real risk of suffering significant harm as defined in s 36(2A) of the Act.

The applicant initially claimed to fear returning to PNG due to economic hardship and lack of employment opportunities. However, at the hearing, he raised a new claim of fearing tribal violence in his home district of Enga Province, supported by photographs and family communications. The court considered country information from DFAT, which indicated that PNG is a lower middle-income, conflict-affected, and fragile state with widespread poverty and limited job prospects. The information also detailed frequent outbreaks of tribal violence, particularly in the Highlands region, often resulting in death and displacement, and noted the severely limited capacity of the Royal Papua New Guinea Constabulary to provide protection. The court applied the "real chance" test for well-founded fear and the "real risk" test for significant harm, noting these standards are the same. An adverse inference was drawn due to the late introduction of the tribal violence claim.

The court affirmed the delegate's decision to refuse the protection visa, finding that the applicant had not established a well-founded fear of persecution or a real risk of significant harm upon return to PNG.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to PNG, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 1 October 2023 and the annexed copy of the applicant’s PNG passport’s bio data page;·The applicant’s application for review of 7 November 2023 and the annexed decision record of 7 November 2023; ·The administrative and movement records of the Department relating to the applicant;·Copies of emails between the applicant and his purported lawyer, [Mr A] (using the email address [Email address]), in which the applicant wrote on 7 November 2023 that:Papua New Guinea PG some short of trouble issues. Mainly in my province, which is Enga province. Last month ago Australian ABC news came, trouble issued in my place. I am really scared to return to Papua New Guinea. Please protect me. I just attached one video which has been took place was taken photos. As you can see. Sorry if you need such information like that please provide too…I hope and believe it will be okay; and·Copies of a series of eight photographs, with two depicting groups of men with white painted faces carrying rifles, one depicting five apparent naked male corpses, and five depicting burning structures and bushland.Claims for protection The applicant, in his protection visa application, stated that his country (PNG) is a very poor country, that there are very few jobs available, and the pay is very low. He stated that it is very difficult to support himself and his family and that is why he came to Australia. His claims (as summarised below) are that:·He came to Australia as there are many jobs in Australia and he can work in Australia and send money back to his family in PNG, which will help his family pay their rental and food costs;·He fears returning to PNG as he will not be able to work and get the good pay he receives in Australia, and he will suffer harm by not being able to earn sufficient funds for everyday living expenses;·He did not seek help within PNG as everybody in PNG is poor and they are facing the same problems he faces, and the authorities cannot help him because they do not have the funds to help their people; and·He did not try to move to another location in PNG as the situation is the same throughout PNG.New ClaimAt the commencement of the hearing, the applicant raised the claim, for the first time, that he feared returning to PNG because of the tribal violence in his home district of [District] in the Enga Province of PNG. The applicant relied upon his email instructions to his former lawyer in November 2023, in which he raised these claims (see above at paragraph 17). He informed the Tribunal at the hearing, as outlined below, that his family had contacted him through [Social media] in around September 2023 providing him with photos of the purported death of tribal warriors and the burning down of his village and other villages in [District]. He told the Tribunal that his family urged him not to return to PNG because the Tribal fighting in his home district had recommenced. It was the applicant’s evidence at the hearing that his family had asked him to apply for protection so he could regain his work rights and continue to financially support them, and to remain in Australia for both economic reasons and because of the re-commenced tribal violence in his home district of [District]. He now further claims (as summarised) that:· If he returns to PNG, his tribal enemies will find him, and he may be killed; · He cannot relocate within PNG as his tribal enemies move around the country and might find him anywhere and kill him; and · He cannot rely upon the police or any authority in PNG to protect him, as they have not been able to stop the tribal violence in [District] and the Enga Province previously.Department interview

Decision

Reasons for decision

The applicant was not offered an interview by the Department.Delegate’s decision The delegate’s decision of 7 November 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims did not relate to any of the reasons in s 5(J)(1)(a) of the Act, and there was no other information before the delegate to suggest that the applicant would be the subject of harm upon his return to PNG for one of those reasons. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. Invitation to attend a hearing On 1 December 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 23 January 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that 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. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. Country information The Tribunal has taken into account the DFAT Country Information Report Papua New Guinea (6 September 2022), as relevant, including the information under the heading of ‘Economic Overview’ at 2.7 to 2.10, where it is reported that:PNG is classified by the World Bank as a lower middle-income country and classified by the Asian Development Bank as a conflict-affected, fragile state, meaning that economic development is challenging and state capacity is limited. The country’s economy remains dominated by two broad sectors: the agricultural, forestry, and fishing sector that engages most of PNG’s labour force (the majority informally); and the minerals and energy extraction sector that accounts for most export earnings and GDP. According to the World Bank, in 2020, PNG’s GDP per capita was USD2,757, lower than its level in 2014. (By comparison, Australia’s GDP per capita in 2020 was USD51,692). PNG ranked 155th out of 189 countries, according to the UN’s 2020 Human Development Index.PNG is a poor country. The majority of the roughly 80 per cent of Papua New Guineans who live in traditional rural communities make their living from subsistence gardens and small-scale cash cropping. According to a measure of poverty used by the World Bank, 85 per cent of the people of PNG are considered poor, due to their lack of disposable income, low level of educational attainment and low level of access to electricity. Only about 15 per cent of PNG residents have reliable access to electricity, among the lowest level in the world. PNG’s population is very young. Around 35 per cent of the population is aged under 15 years and the median age is 22. However, most young people have limited access to education or skills training, and very limited job prospects. According to an ANU economist, PNG has been losing jobs since 2013, the year in which PNG LNG [the country’s first and largest liquefied natural gas extraction and export project] construction was completed. Furthermore, women’s substantially poorer access to health care services, lower levels of educational attainment and literacy, and cultural norms around violence and women’s roles pose significant barriers to their equal participation in economic activities. PNG has no formal welfare system. The ‘wantok’ system, through kinship ties and social bonds, provides an informal and limited social protection mechanism during times of hardship but this system is weakening due to demographic changes (i.e. the rapidly growing population) and urbanisation. COVID−19 pushed many families back, or deeper, into poverty. Under the heading of ‘Inter-Group Violence’ at 2.27 to 2.32, it is reported at 2.27 to 2.28 and 2.31 to 2.32 that:Tensions between and within PNG’s hundreds of different tribal groups arise frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, contested election outcomes, accusations of sorcery and witchcraft, or the souring of relationships or a misunderstanding after an altercation. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, serious injury and death. Violent tribal clashes and random killings of locals have occurred in Highlands Provinces in recent years, including incidents during the 2022 national election period. Tribal violence is particularly prevalent in the Highlands region, an area which accounts for almost half the country’s population. Since 2012, the International Committee of the Red Cross (ICRC) has responded to tribal violence in PNG's Enga, Hela and Southern Highlands provinces by supporting survivors. In 2021, approximately 30,000 people were displaced by communal violence in the areas in which the ICRC operates. The most recent example of tribal violence was in Porgera district, Enga Province, where on 20 July 2022 an estimated 18 people were killed. The Acting UN Resident Coordinator expressed deep concern, noting reports of the attack also included allegations of sexual violence against women and girls, and estimated that several thousand people, mostly women and children, had been displaced. Inter-tribal conflicts often affect transmigrated populations in other parts of the country (e.g. Port Moresby and Lae). Members of ethnic groups may continue their conflicts in other locations. Individuals targeted for violence will often continue to be targeted in locations to which they relocate if members of an opposing tribe are present. Sources reported, for example, that a high school boy in Port Moresby was targeted for violence (and possibly murder) because of his membership of a Highlands clan involved in a conflict there. DFAT assesses that those involved in inter-tribal conflicts face a moderate risk of societal harassment or violence which may not be ameliorated by relocation to another part of PNG.Under the heading of ‘Police’ at 5.3 to 5.6, it is reported at 5.3 and 5.6 that:The Royal Papua New Guinea Constabulary (RPNGC) is the national police force responsible for the investigation of crime and maintaining internal security in all regions of the country. At the time of independence in 1975, police services were estimated to only cover around 10 per cent of the country’s total land area and 40 per cent of the population. Since then, the size of the RPNGC has increased by only 30 per cent, while the overall population has more than quadrupled. In 2022, the strength of the RPNGC is approximately 5,500 personnel. Failure to respond to requests for assistance and persistent reports of police abuse have led to low levels of public confidence in the RPNGC.DFAT assesses that the capacity of the RPNGC and other security forces such as the PNGDF to provide protection for vulnerable cohorts is typically severely limited; such protection will often only be provided following a large public outcry.

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 (the Department), 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 EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to PNG, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 1 October 2023 and the annexed copy of the applicant’s PNG passport’s bio data page;·The applicant’s application for review of 7 November 2023 and the annexed decision record of 7 November 2023; ·The administrative and movement records of the Department relating to the applicant;·Copies of emails between the applicant and his purported lawyer, [Mr A] (using the email address [Email address]), in which the applicant wrote on 7 November 2023 that:Papua New Guinea PG some short of trouble issues. Mainly in my province, which is Enga province. Last month ago Australian ABC news came, trouble issued in my place. I am really scared to return to Papua New Guinea. Please protect me. I just attached one video which has been took place was taken photos. As you can see. Sorry if you need such information like that please provide too…I hope and believe it will be okay; and·Copies of a series of eight photographs, with two depicting groups of men with white painted faces carrying rifles, one depicting five apparent naked male corpses, and five depicting burning structures and bushland.Claims for protection The applicant, in his protection visa application, stated that his country (PNG) is a very poor country, that there are very few jobs available, and the pay is very low. He stated that it is very difficult to support himself and his family and that is why he came to Australia. His claims (as summarised below) are that:·He came to Australia as there are many jobs in Australia and he can work in Australia and send money back to his family in PNG, which will help his family pay their rental and food costs;·He fears returning to PNG as he will not be able to work and get the good pay he receives in Australia, and he will suffer harm by not being able to earn sufficient funds for everyday living expenses;·He did not seek help within PNG as everybody in PNG is poor and they are facing the same problems he faces, and the authorities cannot help him because they do not have the funds to help their people; and·He did not try to move to another location in PNG as the situation is the same throughout PNG.New ClaimAt the commencement of the hearing, the applicant raised the claim, for the first time, that he feared returning to PNG because of the tribal violence in his home district of [District] in the Enga Province of PNG. The applicant relied upon his email instructions to his former lawyer in November 2023, in which he raised these claims (see above at paragraph 17). He informed the Tribunal at the hearing, as outlined below, that his family had contacted him through [Social media] in around September 2023 providing him with photos of the purported death of tribal warriors and the burning down of his village and other villages in [District]. He told the Tribunal that his family urged him not to return to PNG because the Tribal fighting in his home district had recommenced. It was the applicant’s evidence at the hearing that his family had asked him to apply for protection so he could regain his work rights and continue to financially support them, and to remain in Australia for both economic reasons and because of the re-commenced tribal violence in his home district of [District]. He now further claims (as summarised) that:· If he returns to PNG, his tribal enemies will find him, and he may be killed; · He cannot relocate within PNG as his tribal enemies move around the country and might find him anywhere and kill him; and · He cannot rely upon the police or any authority in PNG to protect him, as they have not been able to stop the tribal violence in [District] and the Enga Province previously.Department interview